                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 TEXAS DEPARTMENT OF FAMILY                       §
 AND PROTECTIVE SERVICES,                                         No. 08-10-00067-CV
                                                  §
                   Appellant,                                        Appeal from the
                                                  §
 v.                                                           120th Judicial District Court
                                                  §
                                                                of El Paso County, Texas
 NORMA PARRA,                                     §
                                                                    (TC# 2009-1677)
                   Appellee.                      §


                                           OPINION

       The Texas Department of Family and Protective Services (the “Department”) appeals the

trial court’s denial of its plea to the jurisdiction. The Department contends the order is in error,

and that former Department employee, Norma Parra’s suit for retaliatory discharge should be

dismissed for lack of jurisdiction.

       Ms. Parra worked for the Department from May 2006 until July 2008. Primarily, her job

entailed transporting children and parents involved in DFPS. She also assisted Department staff

with clerical matters. Ms. Parra was involved in a motor vehicle accident on January 28, 2008,

while carrying out her duties for the Department. Following the accident, Ms. Parra was unable

to return to work and filed for worker’s compensation benefits. After exhausting her personal

sick and vacation time, Ms. Parra applied for extended leave under the Federal Medical Leave

Act, which was denied. Ms. Parra never returned to work, and having determined that she

remained unable to perform her work duties, the Department terminated her employment.

       Ms. Parra filed suit against the Department for retaliatory discharge in April 2009. The
Department filed a general denial, and moved to have the suit dismissed for lack of jurisdiction

under the doctrine of sovereign immunity. According to the plea, the trial court lacked subject-

matter jurisdiction over the suit because the anti-retaliation statute does not provide a “clear and

unambiguous” waiver as required by Section 311.034 of the Texas Government Code. In

response, Ms. Parra argued that Section 311.034 did not abrogate Texas Supreme Court case law

recognizing a waiver of sovereign immunity for anti-retaliation claims, as the statute is simply a

legislative statement of the standard long recognized under common law.

       The trial court denied the plea, and the Department now challenges that ruling by

interlocutory appeal. See TEX .CIV .PRAC.&REM .CODE ANN . §51.014(b)(West 2008). In a single

issue, the Department contends that sovereign immunity for claims under the anti-retaliation

statute has not been “clearly and unambiguously” waived, as required by Section 311.034 of the

Texas Government Code.

       Governmental entities, such as state agencies, are immune from suit absent a legislative

waiver. Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000). To protect the

Legislature’s authority in this area, a statute must contain “clear and unambiguous” language

waiving immunity to permit a suit to proceed against the State. See TEX .GOV ’T CODE ANN .

§ 311.034 (West Supp. 2010); Fernandez, 28 S.W.3d at 3. Absent such a waiver, sovereign

immunity deprives a court of subject-matter jurisdiction over claims against the government. See

Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). A plea to the

jurisdiction is the mechanism by which a party may challenge a court’s jurisdiction. City of

Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009). When, as in this case, the jurisdictional

question is limited to the sufficiency of the plaintiff’s pleadings, we will accept as true all factual


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allegations in the petition to determine if the plaintiff has met her burden to allege facts which

affirmatively demonstrate a waiver. Miranda, 133 S.W.3d at 224. As the existence of

jurisdiction is a question of law, the ruling on a plea is subject to de novo review. Miranda, 133

S.W.3d at 226.

        Ms. Parra sued the Department for retaliation following her claim for worker’s

compensation. Chapter 451 of the Texas Labor Code governs claims for employment

discrimination, including retaliation. See TEX .LAB.CODE ANN . § 451.001 (West 2006). Section

451.001 specifically prohibits an employer from retaliating against an employee because the

employee files a good faith claim for workers’ compensation. See TEX .LAB.CODE ANN .

§ 451.001(1). An employee who is terminated or discriminated against in violation of Section

451.001, has a cause of action against the employer for damages incurred as a result of the

violation. See TEX .LAB.CODE ANN . § 451.002.

        As with any other claim against the government, a Chapter 451 cause of action cannot

proceed absent Legislative consent to the suit. See Fernandez, 28 S.W.3d at 4. In the case of a

state agency such as the Department, the State Applications Act (SAA) has been held to provide

such consent and waive sovereign immunity.1 Fernandez, 28 S.W.3d at 9. As a general matter,

the SAA requires state agencies, such as the Department, to provide worker’s compensation

benefits to their employees. See TEX .LAB.CODE ANN . § 501.021; TEX .HUM .RES.CODE ANN .

§ 40.002(c)(West Supp. 2010). The SAA also specifically incorporates several of the state’s

worker’s compensation laws, including Chapter 451, for application against state agencies. See



        1
             The SAA was codified as Labor Code Chapter 501 in 1993. See Fernandez, 28 S.W.3d
at 4, n.3.

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TEX .LAB.CODE ANN . § 501.002(a). Even more specifically, the SAA provides, “[f]or the

purposes of this chapter and Chapter 451, the individual state agency shall be considered the

employer.” TEX .LAB.CODE ANN . § 501.002(b). Considering the statute as a whole, the Texas

Supreme Court concluded that these provisions constituted a “clear and unambiguous” waiver of

sovereign immunity for retaliation claims against a state agency. See Fernandez, 28 S.W.3d at 6.

       Still, the Department argues that because Section 311.034 was enacted after the

Fernandez decision, the ruling has been abrogated by the Legislature. The Department continues

by arguing that its conclusion has been bolstered by the Supreme Court’s recent holding in Travis

Central Appraisal District v. Norman, No. 09-0100, 2011 WL 1652133, at *4 (Tex. April 29,

2011); Fernandez, 28 S.W.3d at 5. In Norman, the Supreme Court concluded that due to

amendments to the Political Subdivisions Act, its prior decision recognizing a waiver of

sovereign immunity for retaliatory discharge claims was no longer controlling. See Norman,

2011 WL 1652133, at *4-5. As the Court discussed in 2005, the Legislature added a new section

(Section 504.053) to the PSL. Norman, 2011 WL 1652133, at *3. Within that new section was a

“broadly-worded provision” stating that, “[n]othing in [the PSL] waives sovereign immunity or

creates a new cause of action. Norman, 2011 WL 1652133, at *3, citing TEX .LAB.CODE ANN .

§ 504.053(e). Based on this new provision, the Court concluded that the PSL failed to

demonstrate a clear and unambiguous waiver as the amendment rendered the statute “too

internally inconsistent to satisfy that standard.” Norman, 2011 WL 1652133, at *5, citing

TEX .GOV ’T CODE ANN . § 311.034. In light of the amendment, the Court concluded sovereign

immunity barred a retaliation claim against the political subdivision. See Norman, 2011 WL

1652133, at *5.


                                               -4-
       Unlike the PSL, the SAA has not been amended since the Supreme Court issued its

decision in Fernandez. There is no indication that the rationale which lead the Court to conclude

there was a clear and unambiguous waiver of sovereign immunity for retaliation claims under the

SAA has been altered in a way that would lead to a different result. See Fernandez, 28 S.W.3d at

5-6. As the Norman decision demonstrates, determining whether a statute contains a clear and

unambiguous waiver of sovereign immunity depends on the construction of the language of the

statutes implicated by the claim involved. See Norman, 2011 WL 1652133, at *4-5. The

Supreme Court performed such a construction of the SAA in Fernandez, and concluded

sovereign immunity was waived. See Fernandez, 28 S.W.3d at 5. As the SAA has not been

amended since the Fernandez decision, there is no basis upon which this Court can conclude a

different result is warranted in the case before us. In so far as the Department contends the

Norman opinion abrogated the holding in Fernandez, that argument is overruled.

       Norman does provide guidance, however, on the Department’s related argument

regarding the effect of Section 311.034 to the Texas Government Code. Section 311.034 states:

               In order to preserve the legislature’s intent 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. In a statute, the use of ‘person,’ as defined by Section 311.005 to
       include governmental entities, does not indicate legislative intent to waive
       sovereign immunity unless the context of the statute indicates no other reasonable
       construction. Statutory prerequisites to a suit, including the provision of notice,
       are jurisdictional requirements in all suits against a governmental entity.

TEX .GOV ’T CODE ANN . § 311.034.

       The Department argues that by enacting this statute, the Legislature has replaced the

common law “clear and unambiguous” standard, with a mandate for even greater clarity



                                                -5-
regarding waivers of sovereign immunity. We disagree. In its holding in Norman, that the PSL’s

amended language no longer demonstrated a legislative intent to waive immunity, the Supreme

Court cited Section 311.034 simply for the proposition that a waiver of immunity must be, “clear

and unambiguous.” Norman, 2011 WL 1652133, at *5. In reaching its conclusion that the

newly-revised PSL no longer met the clear and unambiguous standard, the manner of the

legislative intent analysis followed the framework established under the common law standard.

Id. 2011 WL 1652133, at *3-5. Although the Court ultimately concluded that to due to the

amendment, the PSL no longer contained a clear and unambiguous waiver, we do not agree that

the Norman decision has altered the way in which Texas courts determine whether or not a

particular statute meets the clear and unambiguous standard. See Norman, 2011 WL 1652133, at

*3-5. In other words, there is no indication that the Legislature’s codification of the “clear and

unambiguous” standard has affected the way legislative intent to waiver sovereign immunity is

analyzed in Texas. See id. As such, the Department’s argument that Section 311.034’s

enactment has altered or abrogated the analysis to determine whether a particular statute contains

a clear and unambiguous waiver is overruled. Having overruled both arguments, we overrule

Issue One in its entirety.

        Having overruled Appellant’s sole issue, we affirm the trial court’s order denying the plea

to the jurisdiction.


July 29, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.




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