      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00605-CV



                        Texas Parks and Wildlife Department, Appellant

                                                  v.

                                    Fernando Flores, Appellee


    FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
         NO. CV-07144, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                                MEMORANDUM OPINION


                Appellee Fernando Flores brought suit against the Texas Parks and Wildlife Department

(“TPWD”) for retaliatory discharge, alleging that he was terminated for filing a workers’ compensation

claim. See Tex. Lab. Code Ann. §§ 451.001-.003 (West 2006). TPWD filed a plea to the jurisdiction,

which the trial court denied. In this interlocutory appeal, TPWD argues that the trial court erred in

denying its plea to the jurisdiction because Flores did not establish a waiver of sovereign immunity.

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2005) (permitting appeal of interlocutory

order that grants or denies plea to the jurisdiction by governmental unit). We affirm the denial of

the plea to the jurisdiction.


                                         BACKGROUND

                Flores was previously employed by TPWD as a park ranger at Blanco State Park. In

2009 and 2010, Flores allegedly sustained work-related injuries. According to his original petition,
Flores received a letter from his supervisor advising him that if he did not return to work without

restrictions by October 15, 2010, his employment would be terminated. On October 14, 2010, Flores

submitted a workers’ compensation status report to TPWD. The report, which was completed by

Flores’s doctor, indicated that Flores was only cleared to return to work with restrictions. By letter

dated October 15, 2010, Flores was notified that his employment was terminated for his failure to

return without restrictions.

               On May 5, 2011, Flores filed suit against TPWD under chapter 451 of the Texas

Labor Code, also known as the Anti-Retaliation Law, which provides that a person may not

be discharged for filing a workers’ compensation claim in good faith. See Tex. Lab. Code Ann.

§§ 451.001-.003. TPWD answered and subsequently filed a plea to the jurisdiction asserting that

the court lacked subject-matter jurisdiction over Flores’s claim because there is no waiver of

sovereign immunity for claims brought against state agencies under the Anti-Retaliation Law. In

response, Flores argued that the State Applications Act operates as a waiver of sovereign immunity

for his anti-retaliation claim. See id. § 501.002(a)(10), (b) (West 2006). Following a hearing, the

trial court denied TPWD’s plea to the jurisdiction. This interlocutory appeal followed.

               In its sole issue on appeal, TPWD contends that the trial court erred in denying its

plea because the legislature has not clearly and unambiguously waived sovereign immunity from suit

under the Anti-Retaliation Law, as required by section 311.034 of the Code Construction Act. See

Tex. Gov’t Code Ann. § 311.034 (West Supp. 2011).


                                   STANDARD OF REVIEW

               A plea to the jurisdiction is a dilatory plea that challenges the trial court’s authority

to determine the subject matter of a specific cause of action. See Bland Indep. Sch. Dist. v. Blue,

                                                  2
34 S.W.3d 547, 553-54 (Tex. 2000). Sovereign immunity from suit deprives a court of subject-matter

jurisdiction and therefore is properly asserted in a plea to the jurisdiction. State v. Lueck, 290 S.W.3d

876, 880 (Tex. 2009). Whether a trial court has subject-matter jurisdiction is a question of law that

we review de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007).


                                            DISCUSSION

                The State and its agencies are generally immune from suit, absent an express

waiver of sovereign immunity. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224

(Tex. 2004). Texas courts defer to the legislature to waive sovereign immunity from suit, because

this allows the legislature to protect its policymaking function. Texas Natural Res. Conservation

Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Thus, a waiver of sovereign immunity must

be expressed in clear and unambiguous statutory language. Travis Cent. Appraisal Dist. v. Norman,

342 S.W.3d 54, 58 (Tex. 2011); see also Tex. Gov’t Code Ann. § 311.034.


State Applications Act and the Anti-Retaliation Law

                The State Applications Act requires state agencies, such as TPWD, to provide

workers’ compensation benefits to their employees. See Tex. Lab. Code Ann. § 501.021 (West 2006).

The State Applications Act also incorporates many provisions of the Workers’ Compensation Act

and makes them applicable to state agencies, such as TPWD. See id. § 501.002(a) (providing that

“[t]he following provisions of Subtitles A and B apply to and are included in this chapter except

to the extent that they are inconsistent with this chapter”). In addition, the State Applications Act

makes the Anti-Retaliation Law applicable to state agencies. Id.



                                                   3
               In Kerrville State Hospital v. Fernandez, the Texas Supreme Court addressed the

very same issue now before this court—whether the State Applications Act waives state agencies’

sovereign immunity for claims brought under the Anti-Retaliation Law. 28 S.W.3d 1, 4 (Tex. 2000).1

The supreme court examined the 1989 version of the State Applications Act and determined that it

provided a clear and unambiguous waiver of state agencies’ sovereign immunity for anti-retaliation

claims. Id. at 18-19.

               In reaching its conclusion, the supreme court focused its analysis on section 15(b) of

the 1989 version of the State Applications Act. The first sentence of section 15(b) incorporated the

Anti-Retaliation Law into the State Application Act. Act of Dec. 13, 1989, 71st Leg. 2d C.S., ch. 1,

§ 15, 1989 Tex. Gen. Laws 1, 111-12 (current version at Tex. Lab. Code Ann. § 501.002(a)). The

supreme court acknowledged that this incorporation, standing alone, failed to sufficiently demonstrate

the legislature’s intent to waive immunity. See Fernandez, 28 S.W.3d at 14 (citing Duhart v. State,

610 S.W.2d 740, 742-43 (Tex. 1980)). However, the second sentence of section 15(b) provided that

the “individual agency shall be considered the employer” for purposes of the Anti-Retaliation Law.

Act of Dec. 13, 1989, 71st Leg. 2d C.S., ch. 1, § 15, 1989 Tex. Gen. Laws 1, 111-12. The court

explained that, by including this second sentence, the legislature went far beyond merely

incorporating the Anti-Retaliation Law into the State Applications Act. See Fernandez, 28 S.W.3d

at 15. Instead, in this second sentence, the legislature specifically chose to designate the agency as


       1
           Prior to Fernandez, the supreme court had determined that the Anti-Retaliation Law
itself did not contain a clear and unambiguous waiver of immunity. See City of LaPorte v. Barfield,
898 S.W.2d 288, 298-99 (Tex. 1995). In this case, there is no dispute that the Anti-Retaliation Law
itself does not operate as a waiver a sovereign immunity. See Travis Cent. Appraisal Dist. v.
Norman, 342 S.W.3d 54, 57 (Tex. 2011) (noting that Anti-Retaliation Law has never been amended).

                                                  4
“the employer” for purposes of the Anti-Retaliation Law. Id. The court reasoned that this designation

would make no sense if the agency could not be sued under the Anti-Retaliation Law, rhetorically

asking, “Why would the legislature designate an individual state agency as the employer for purposes

of a law creating a cause of action if the agency cannot be sued for that cause of action?” Id. at 15-16.

Based on these observations, the supreme court concluded that section 15(b) would serve no purpose

if the legislature did not intend to waive state agencies’ sovereign immunity for anti-retaliation

claims. Id. at 9, 18-19.

                In this case, TPWD does not dispute that the supreme court in Fernandez held that

the legislature clearly and unambiguously waived sovereign immunity for claims against state

agencies under the Anti-Retaliation Law. Instead, TPWD contends that the supreme court’s holding

in Fernandez should be re-examined in light of the legislature’s 2001 enactment of section 311.034

of the Code Construction Act and subsequent legislative amendments to the State Applications

Act. See Tex. Gov’t Code Ann. § 311.034; Tex. Lab. Code Ann. §§ 501.001-051 (West 2006 &

Supp. 2011).


Section 311.034 of the Code Construction Act

                We first examine whether the legislature’s subsequent enactment of section 311.034

of the Code Construction Act overrules the Texas Supreme Court’s holding in Fernandez. Section

311.034 was added to the Code Construction Act in 2001 and in relevant part provides:


        In order to preserve the Legislature’s interest in managing state fiscal matters through
        the appropriations process, a statute shall not be construed as a waiver of sovereign
        immunity unless the waiver is effected by clear and unambiguous language.



                                                   5
Tex. Gov’t Code Ann. § 311.034. However, even before 2001, Texas courts had required a clear and

unambiguous expression of waiver of sovereign immunity. See, e.g., City of LaPorte v. Barfield,

898 S.W.2d 288, 291 (Tex. 1995); Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980); Texas

Workers’ Comp. Comm’n v. Texas Builders Ins. Co., 994 S.W.2d 902, 906 (Tex. App.—Austin

1999, pet. denied). In Fernandez, the supreme court applied this common-law standard, explaining

that the purpose of the clear-and-unambiguous requirement was “to guarantee that courts adhere to

legislative intent.” 28 S.W.3d at 3.

               TPWD contends that, unlike the common-law standard applied in Fernandez,

section 311.034 now makes clear that waiver is effected only by clear and unambiguous language.

According to TPWD, the court in Fernandez instead determined that the legislature expressed a

clear and unambiguous intent to waive sovereign immunity, which is no longer relevant under

section 311.034.

               We disagree that enactment of section 311.034 was intended to modify the

common-law standard for waiver of sovereign immunity. As the Texas Supreme Court recently

recognized in Travis Central Appraisal District v. Norman, section 311.304 merely codified this

pre-existing, clear-and-unambiguous standard. 342 S.W.3d at 58. Moreover, both before and after

the enactment of section 311.034, the clear-and-unambiguous standard for waiver of sovereign

immunity has focused on legislative intent. In Norman, the court explained that the current clear-

and-unambiguous requirement should not be applied “mechanically to defeat the law’s purpose or

the legislature’s intent.” Id. at 58 (citing Barfield, 898 SW.2d at 288). Rather, legislative intent

“remains the polestar of statutory construction.” See id.



                                                 6
               Thus, even though Fernandez was decided before the enactment of section

311.034, the court in Fernandez applied the same standard for waiver of sovereign immunity

presented in section 311.034 of the Code Construction Act. See 28. S.W.3d at 3. We cannot conclude

that Fernandez was overturned by the legislature’s subsequent codification of the clear-and-

unambiguous standard.


Changes to the State Applications Act

               We next consider whether, as a result of subsequent legislative amendments, the

State Applications Act no longer reflects a clear and unambiguous waiver of sovereign immunity.

TPWD asserts that the specific language of the State Applications Act relied on by the court in

Fernandez, section 15(b), has substantively changed since that decision. TPWD contends that, as

a result of these changes, the State Applications Act is now “too internally inconsistent” to clearly

and unambiguously waive sovereign immunity.2 See Norman, 342 S.W.3d at 58 (holding that

Political Subdivisions Law no longer operates as waiver of sovereign immunity). Instead, according

to TPWD, the language is now nearly identical to language that the supreme court in City of LaPorte




       2
          TPWD asserts that, under the Texas Supreme Court’s reasoning in Travis Central Appraisal
District v. Norman, the legislative changes to the State Applications Act render it “too internally
inconsistent” to satisfy the clear-and-unambiguous standard for waiver of immunity. 342 S.W.3d
at 58-59. However, the legislature has “continually tinkered with” the Political Subdivisions Law
at issue in Norman, having amended it more than four times since the supreme court originally
determined that it expressed an intent to waive immunity. Id. at 57. Most notably, the legislature
added an express “no-waiver” provision, which the supreme court concluded renders the Political
Subdivision Law “too internally inconsistent.” See also Tex. Labor Code Ann. § 504.053(e) (West
2006) (“Nothing in the [Political Subdivision Law] waives sovereign immunity or creates a new
cause of action”). The State Applications Act does not include a “no-waiver” provision. In short,
Norman is not controlling in this case.

                                                 7
v. Barfield concluded fails to adequately express a waiver of sovereign immunity. See 898 S.W.2d

at 295.

               In Barfield, the Texas Supreme Court held that the 1981 and 1989 versions of the

Political Subdivisions Law operated as a clear waiver of sovereign immunity for anti-retaliation

claims brought against political subdivisions. See id. at 297-299. However, in reaching this

conclusion, the court first analyzed whether a cross-reference provision in the 1981 Political

Subdivisions Law expressed a clear intent to waive immunity. See id. at 295. That provision

provided that when the various statutes adopted by the Political Subdivisions Law used the

words “‘association,’ ‘subscriber,’ or ‘employer,’ or their equivalents” that those words were to be

construed to mean “political subdivision.” Act of May 31, 1981, 67th Leg., R.S., ch. 352, § 3, 1981

Tex. Gen. Laws 937, 938 (current version at Tex. Lab. Code Ann. § 501.002(b)-(c)). The supreme

court concluded that the Political Subdivisions Law’s incorporation of the Anti-Retaliation Law

accompanied by this type of cross-reference provision was an insufficient expression of the

legislature’s intent to waive immunity. See Barfield, 898 S.W.2d at 295. TPWD now asserts, in

essence, that the relevant provisions in the current version of the State Applications Act more

closely resemble the cross-reference provision rejected as a waiver of sovereign immunity in

Barfield, as opposed to section 15(b), the provision of the 1989 State Applications Act relied on by

the court in Fernandez.

               As previously discussed, the supreme court in Fernandez focused its analysis on

section 15(b) of the 1989 version of the State Application Act. Section 15(b) stated:



                                                 8
       [The Anti-Retaliation Law] is adopted except to the extent it is inconsistent with this
       article. For the purpose of [the Anti-Retaliation Law], the individual state agency
       shall be considered the employer.


Act of Dec. 13, 1989, 71st Leg. 2d C.S., ch. 1, § 15, 1989 Tex. Gen. Laws 1, 111-12. As a result of

legislative changes, section 15(b) of the 1989 version of the State Applications Act has been

replaced by section 501.002(a) and section 501.002(b). These portions of the State Applications

Act currently provide:


       (a) The following provisions of [the Texas Worker’s Compensation Act] and [the
       Anti-Retaliation Law] apply to and are included in this chapter except to the extent
       that they are inconsistent with this chapter:

       ...

               (10) [the Anti-Retaliation Law]

       (b) For the purposes of [State Applications Act] and [the Anti-Retaliation Law], the
       individual state agency shall be considered the employer.


Tex. Lab. Code Ann. §501.002(a)(b) (West 2006). Upon comparing these statutory provisions, we

conclude that section 501.002(a) and (b) of the current State Applications Act, including its

designation of the individual state agency as the “employer” for purposes of the Anti-Retaliation

Law, are virtually identical to section 15(b). In addition, we disagree that the section 501.002(b) in

the current version of the State Applications Act is substantially similar to the cross-reference

provision at issue in Barfield.

               Like the version of the Political Subdivisions Law at issue in Barfield, section

501.002(a) of the current version of the State Applications Act incorporates many workers



                                                  9
compensation statutes normally applicable only to private employers, including the Anti-Retaliation

Law. See Tex. Labor Code Ann. § 501.002(a) (adopting all, or portions of, chapters 401-406,

408-417, and 451). However, unlike the cross-reference provision at issue in Barfield, section

501.002(b) does not simply provide instructions for “substituting one word for another in a series

of statutes” See Fernandez, 28 S.W.3d at 8. Instead, just like section 15(b) of the 1989 version of

the State Applications Act, section 501.002(b) provides instructions for how to treat state agencies

under only one of the statutes incorporated—the Anti-Retaliation Law. See id. (rejecting argument

that section 15(b) of State Applications Act was cross-reference provision “virtually identical” to

cross-reference provision of Political Subdivisions Law, reasoning that it provided “instructions for

how to treat state agencies under a specified statute”). As the supreme court reasoned in Fernandez,

the legislature would have no reason to make this type of specific designation unless it intended to

waive immunity for anti-retaliation claims. See 28 S.W.3d at 9. Accordingly, we cannot conclude

that State Applications Act has substantively changed since the supreme court’s decision in

Fernandez or that the State Applications Act has been rendered “too internally inconsistent.”

               Whether the current version of the State Applications Act reflects a clear and

unambiguous waiver of sovereign immunity has not yet been decided by the Texas Supreme Court.

However, several of our sister courts of appeals have recently addressed the issue and held that

neither the subsequent enactment of section 311.034 of the Code Construction Act nor any

amendment to the State Applications Act changes the court’s holding in Fernandez. See Texas

Dep’t of Aging & Disability Servs. v. Beltran, 350 S.W.3d 410, 414-15 (Tex. App.—El Paso 2011,

pet. filed); Texas Office of the Comptroller of Pub. Accounts v. Saito, No. 05-10-00297-CV,

                                                 10
2012 Tex. App. LEXIS 5333, at *10 (Tex. App.—Dallas July 5, 2012, no pet. h.) (mem. op);

Office of the Attorney Gen. v. Diaz, No. 13-10-00479-CV, 2011 Tex. App. LEXIS 8349, at *7

(Tex. App.—Corpus Christi Oct. 20, 2011, pet. filed) (mem. op.). Having considered these same

arguments, we also determine that Fernandez remains good law which binds this Court.3 See Beltran,

350 S.W.3d at 416 (“Under the doctrine of stare decisis, it is not our function to abrogate or modify

established precedent. . . . That function lies solely with the Texas Supreme Court.”); Petco Animal

Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.—Austin 2004, no pet.) (“As an

intermediate court, we are not free to mold Texas law as we see fit but must instead follow the

precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas

Legislature supersedes them by statute.”). Accordingly, we conclude that the State Applications Act

clearly and unambiguously expresses the legislature’s intent to waive sovereign immunity for

claims brought against state agencies under the Anti-Retaliation Law. We overrule the TPWD’s

sole issue on appeal.


                                         CONCLUSION

               We affirm the trial court’s order denying TPWD’s plea to the jurisdiction.


       3
          TPWD also asserts that section 501.002(d) of the State Applications Act indicates that the
legislature did not intend to waive sovereign immunity. This section provides that neither the State
Applications Act 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 Torts Claim Act.].” See Tex. Lab. Code Ann. § 501.002(d) (West 2006);
Tex. Civ. Prac. & Rem. Code Ann. §§ 101.023-.024 (West 2011). However, this provision was
expressly considered by the Texas Supreme Court in Kerrville State Hospital v. Fernandez, and
the court held that it served to incorporate the tort claim act’s damage caps. See 28 S.W.3d 1, 9-10
(Tex. 2000); see also Barfield, 898 S.W.2d at 299 (concluding that identical provision in Political
Subdivisions Law served to impose limits on damages recoverable under Anti-Retaliation Law). We
will not second guess the Texas Supreme Court’s reasoning in reaching this conclusion.

                                                 11
                                          __________________________________________

                                          Diane M. Henson, Justice

Before Justices Puryear, Henson, and Goodwin

Affirmed

Filed: August 10, 2012




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