









Opinion filed March 8, 2007

















 








 




Opinion filed March 8, 2007
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                   __________
 
                                                          No. 11-06-00225-CV 
                                                    __________
 
                          THE CITY OF COLORADO
  CITY, TEXAS, A
                              MUNICIPAL
CORPORATION, Appellant
 
                                                             V.
 
                                         CONNIE
PONKO, Appellee
 

 
                                          On
Appeal from the 32nd District Court
 
                                                         Mitchell County,
Texas
 
                                                   Trial
Court Cause No. 14,893
 

 
                                                                   O
P I N I O N
 In this
interlocutory appeal, the City of Colorado City, Texas, a municipal
corporation, appeals the trial court=s
denial of the City=s plea to
the jurisdiction. We affirm. 




Connie Ponko began working for the City in
approximately 1987.  During her
employment with the City, she served in various capacities and, at one time,
had human resources responsibilities. 
During her employment with the City, Ponko became familiar with the City=s human resources practices.  Ponko knew that the city council had approved
certain policies on an as-needed basis dealing with sick leave and harassment
and discrimination.  Ponko knew that the
City had never adopted a grievance procedure for City employees other than for
the police department.  She had been
asked approximately four times during her employment to confirm whether the
1980 policy was ever adopted.  It never
was.  She was instructed to review the
minutes, resolutions, and ordinances of council meetings to confirm that the
policy was never adopted.  At one point
during her employment, Ponko was instructed by the city attorney to stop
handing out the 1980 policy because it was not a valid document.
Ponko was informed on January 5, 2006, that her
position was being terminated.  Her last
day of employment was January 20, 2006. 
On April 4, Ponko sent a letter to the City.  The contents of the letter were as follows:
It is my understanding that the City of Colorado
City does not have a grievance policy. If I am incorrect, please provide me
immediately with a copy of the policy. 
It is my belief that the termination of my employment was wrongful.
 
On April 5, the day after she put her letter in
the mail, Ponko sued the City for wrongful termination under the Whistleblower
Act.  Tex.
Gov=t Code Ann. ch. 554 (Vernon 2004).  The letter was received by the City on April
7.  The City filed an answer and plea to
the jurisdiction on May 12, 2006.  A
hearing on the plea to the jurisdiction was held on June 29, 2006.  At the hearing, the trial court was presented
with the city manager=s
response to Ponko=s letter,
which consisted of portions of a document entitled ACity
of Colorado City Personnel Policy, May 1980@;
an acknowledgment that the policy was never adopted by the city council; and a
copy of Section 504 of the Rehabilitation Act of 1973, pertaining to a
grievance procedure for Aqualified
handicapped@ persons
who are Asubjected
to discrimination under any program or activity receiving federal financial
assistance.@  Specifically, the city manager=s letter to Ponko stated:
Please find the attached copy of Resolution 96-01
which approved a Section 504 Resolution regarding the 504 Grievance Procedures.
 
Please also find a copy of a page 13 and page 14
of the 1980 Personnel Manual which is relative to a grievance procedure which
was apparently utilized by the City and handed out to employees over the years
and which was apparently never approved by the City Council by Resolution or
Ordinance.
 




In the August 9, 2006 order, the trial court
denied the City=s plea to
the jurisdiction and abated the matter for sixty days.  The City timely filed this interlocutory
appeal pursuant to Tex. Civ. Prac. &
Rem. Code Ann. '
51.014(a)(8) (Vernon
Supp. 2006).  On appeal, among other
issues, the City contends that Ponko did not satisfy the statutory
prerequisites of the Whistleblower Act and that such failure precluded the
trial court from having jurisdiction over the suit.  See Section 554.006.  Because this issue is dispositive of the
appeal, we need not address the other issues. 
This court has jurisdiction to review an
interlocutory order of a district court that grants or denies a plea to the
jurisdiction by a governmental unit. See Section 51.014(a)(8).  We review de novo the trial court=s ruling on a plea to the
jurisdiction.  Tex.
Natural Res. Conservation Comm=n
v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002).  A court deciding a plea to the
jurisdiction is not required to look solely to the pleadings but may consider
evidence and must do so when necessary to resolve the jurisdictional issues
raised.  Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 555 (Tex.
2000).  We do not look at the merits of
the case. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe
the pleadings liberally in favor of conferring jurisdiction. Texas
Dep=t of
Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002).
In Texas,
sovereign immunity deprives a trial court of subject-matter jurisdiction for
lawsuits in which the State or certain governmental units have been sued unless
the State consents to suit.  Tex. Dep=t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Sovereign immunity consists of
two separate principles:  immunity from
suit and immunity from liability.  Id.  Immunity from liability is an affirmative
defense; while immunity from suit deprives a court of subject-matter
jurisdiction. Id. Sovereign immunity is waived only when the legislature
has clearly and unambiguously expressed that intent.  See Tex.
Gov=t Code Ann. _
311.034 (Vernon 2005). 
Section 554.0035 of the Whistleblower Act contains
the following provision: 
A public employee who alleges a violation of this
chapter may sue the employing state or local governmental entity for the relief
provided by this chapter. Sovereign immunity is waived and abolished to the
extent of liability for the relief allowed under this chapter for a violation
of this chapter. 
 




The Texas Supreme Court states that the above section is an
example of a statute that shows the legislature=s
intent to waive immunity.  Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also
Montgomery County Hosp. Dist. v. Smith, 181 S.W.3d 844, 851-52 (Tex. App._Beaumont
2005, no pet.); City of New Braunfels v. Allen, 132 S.W.3d 157, 164 n.11
(Tex. App._Austin
2004, no pet.).  
Section 554.006(a) of the Whistleblower Act
requires that a claimant Amust
initiate action under the grievance or appeal procedures of the employing state
or local governmental entity relating to suspension or termination of
employment or adverse personnel action before suing under [the Act].@ 
We have held, contrary to some courts of appeals, that the statutory
requisites of Section 554.006 are jurisdictional.  Midland Indep. Sch. Dist. v. Watley,
No. 11-04-00262-CV, 2006 WL 1451565 (Tex. App._Eastland,
May 25, 2006, no pet.);  but see Montgomery
County Hosp. Dist., 181 S.W.3d at 853 (holding that the language in Section
554.006 does not evidence a clear and unambiguous intent to waive sovereign
immunity and acknowledging the split among courts of appeals on whether
compliance with Section 554.006 is a requisite to establishing
jurisdiction).  The Texas Supreme Court
has declined thus far to answer that question. 
Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d
631, 632-33 (Tex.
2005) (AWe need
not decide here whether the failure to meet these requirements deprives the
court of jurisdiction over the action.@).  Subsequent to Barrett, the legislature
added a sentence to Section 311.034 that reads: AStatutory
prerequisites to a suit, including the provision of notice, are jurisdictional
requirements in all suits against a governmental entity.@





Since Barrett and Watley, we have
held that Athe
legislature intended to make clear that a governmental entity=s immunity from suit for a
whistleblower claim is conditioned upon timely filing a grievance.@ 
Med. Arts Hosp. v. Robison, No. 11-05-00320-CV, 2006 WL 3679999,
at *2 (Tex. App._Eastland, Dec. 14, 2006,
no pet.); see also Montgomery
County Hosp. Dist., 181 S.W.3d at 852. 
This case presents a different question than other cases that have dealt
with unclear grievance procedures or grievance procedures that were not
strictly complied with by the claimant.[1]  In this case, there is no grievance
procedure.  The language of the statute
requires that Athe@ grievance procedure be initiated and
that Athe
applicable grievance or appeal procedure@
be invoked.  Section 554.006(a),
(b).  Such language implies that a
grievance procedure is in place.  A
governmental entity cannot take the benefit of the policy underlying Section
554.006(b) B to give
the employer the opportunity to correct its own errors by resolving disputes
before being subjected to the expense and effort of litigation B by challenging subject-matter
jurisdiction when no grievance procedure is in place.  Section 554.006(b); Breaux v. City of Garland, 205 F.3d
150, 163 (5th Cir. 2000).  Any notice
requirement in Section 554.006 is a reference to the applicable grievance
process and not general notice of a whistleblower claim.  Montgomery
 County Hosp.
Dist., 181 S.W.3d at 850.
Section 554.005 provides that, A[e]xcept as provided by Section 554.006,[2]
a public employee who seeks relief under this chapter must sue not later than
the 90th day after the date on which the alleged violation of this chapter
occurred.@  Section 554.005(1). When there is no
procedure with which to comply under Section 554.006, claimants should not be
barred from filing their claim within the ninety-day period allowed under
Section 554.005. 
   Ponko
timely filed her suit within the ninety-day period.  We hold that failure to comply with Section
554.006 does not deprive the court of jurisdiction when it is undisputed that
no grievance procedure is in place and when the suit was otherwise timely
filed.  The trial court did not err in
denying the City=s plea to
the jurisdiction.  
The judgment of the trial court is affirmed.
 
JIM R. WRIGHT
CHIEF JUSTICE
March 8, 2007
Panel
consists of:  Wright, C.J., 
McCall,
J., and Strange, J.




[1]Med. Arts Hosp. v. Robison, 2006 WL 3679999, at *2; Montgomery County Hosp.
Dist., 181 S.W.3d 844; Tex. Dep=t
of Criminal Justice v. McElyea,153
S.W.3d 155 (Tex. App._Austin 2004, no pet.); Caldwell County Sheriff=s Office v. Crider, No. 03-02-00321-CV, 2003 WL 21354690 (Tex. App._Austin, June 12, 2003, writ den=d); Berry v. Bd. of Regents, Tex. S. Univ., 116
S.W.3d 323 Tex. App._Houston [14th Dist.] 2003, pet. denied); City of
Houston v. Kallina, 97 S.W.3d 170 (Tex. App._Houston [14th Dist.] 2002, pet. denied); Fort Bend Indep. Sch. Dist. v. Rivera,
93 S.W.3d 315, 320 n.4  (Tex. App._Houston [14th Dist.] 2002, no pet.) (noting that the
court=s conclusion does not address requirements under
Section 554.006(a) when employer has no grievance procedure); Johnson v. The
City of Dublin, 46 S.W.3d 401 (Tex. App._Eastland 2001, pet. denied); Univ. of Tex. Med.
Branch at Galveston v. Hohman, 6 S.W.3d 767 (Tex. App._Houston [1st Dist.] 1999, writ dism=d w.o.j.); Curbo v. State of Texas, Office of
the Governor, 998 S.W.2d 337 (Tex. App._Austin 1999, no pet.); Besier v. Tomball Hosp.
Auth., 902 S.W.2d 721 (Tex. App._Houston [1st Dist.] 1995, writ denied).


[2]Section 554.006(a), (b) of the Texas Government Code
reads in relevant part: 
 
(a) A public employee must initiate action under the
grievance or appeal procedures of the employing state or local governmental
entity relating to suspension or termination of employment or adverse personnel
action before suing under this chapter.
 
(b) The employee must invoke the applicable grievance
or appeal procedures not later than the 90th day after the date on which the
alleged violation of this chapter:
 
(1) occurred; or
 
(2) was discovered by the employee through reasonable diligence.


