                IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO. 16-0897
                                         444444444444

                      NEIGHBORHOOD CENTERS INC., PETITIONER,
                                                 v.


                            DOREATHA WALKER, RESPONDENT
            4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                      COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
            4444444444444444444444444444444444444444444444444444


                                    Argued November 7, 2017


       JUSTICE JOHNSON, concurring.


       The Court says that the question in this case is “whether the [Whistleblower Act] applies to

an open-enrollment charter school operated by a tax-exempt entity.” Ante at __. It ultimately

concludes that the Act, which applies only to state and local governmental entities, does not apply

to open-enrollment charter schools because (1) the Whistleblower Act does not say it does, and (2) it

is not listed in the Charter Schools Act. Ante at __. I agree.

       However, the Court’s opinion contains language regarding immunity that I consider

unnecessary to its analysis and which might be taken by some as endorsing or assuming the validity

of legislation that, at first blush, seems to conflict with our prior cases and with the Texas

Constitution. The Court states that “under a statute specifically applicable to charter schools,
including those listed in the [Charter Schools Act], an open-enrollment charter school is immune

from liability and suit as a school district.” Ante at __. The Court bases this statement on Education

Code section 12.1056(a) which provides that “[i]n matters related to operation of an open-enrollment

charter school, an open-enrollment charter school or charter holder is immune from liability and suit

to the same extent as a school district.” TEX. EDUC. CODE § 12.1056(a).

          Whether, under the Texas Constitution, the Legislature has authority to grant immunity is

not a question presented in this case. It is an important question, and one the Court has addressed

before.          The doctrine of sovereign or, as applied to political subdivisions of the state,

governmental, immunity developed through the common law. The judiciary “has historically been,

and is now, entrusted with ‘defin[ing] the boundaries of the common-law doctrine and . . .

determin[ing] under what circumstances sovereign immunity exists in the first instance.’” Wasson

Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 432 (Tex. 2016) (quoting Reata Const. Corp.

v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006)). But courts have deferred to the Legislature

regarding waiver of immunity because “the Legislature is better suited to balance the conflicting

policy issues associated with waiving immunity.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 695–96 (Tex. 2003).

          In LTTS Charter School, Inc. v. C2 Construction, Inc., we considered whether an open-

enrollment charter school was a “governmental unit” under the Tort Claims Act and, therefore,

whether the school was entitled to take an interlocutory appeal from the trial court’s denial of its

plea to the jurisdiction. 342 S.W.3d 73, 74–75 (Tex. 2011). The Court did “not resolve the

underlying issue of whether [the school] enjoys immunity” from the contract claim being made


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there, and did not otherwise address the Legislature’s enactment regarding charter school immunity.

Id. at 82. The dissenting justice noted that the issue of whether the Legislature could confer

immunity on a private entity was far from clear. Id. at 89 (Guzman, J., dissenting) (“[T]he precise

contours of the Legislature’s power to grant immunity by statute remain unclear—it is no doubt

limited by the Open Courts and Due Course of Law provisions of our Constitution.”).

       That the question is not presented or decided in this case is manifested by the Court’s brief

reference to the statutory language and the lack of the type of discussion and analysis warranted

regarding an issue of such constitutional magnitude. I do not read the Court’s opinion in this case

to endorse the concept that under the Texas Constitution the Legislature is authorized to grant

sovereign or governmental immunity, or that it has done so in section 12.1056(a). That question,

if it were to be presented, is one of constitutional dimension, warranting full and transparent

briefing, analysis and discussion—especially in light of our prior statements and decisions. See, e.g.,

Univ. of the Incarnate Word v. Redus, 518 S.W.3d 905, 911 (Tex. 2017); Wasson Interests, Ltd., 489

S.W.3d at 432; Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015); Reata

Const. Corp., 197 S.W.3d at 375.



                                               ________________________________________
                                               Phil Johnson
                                               Justice


OPINION DELIVERED: April 13, 2018




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