                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                               ________________

                              NO. 09-15-00531-CV
                               ________________

       BEAUMONT INDEPENDENT SCHOOL DISTRICT, Appellant

                                        V.

                   SHAUNTE GUILLORY, Appellee
__________________________________________________________________

                On Appeal from the 60th District Court
                       Jefferson County, Texas
                      Trial Cause No. B-197,835
__________________________________________________________________

                         MEMORANDUM OPINION

      In this accelerated interlocutory appeal, appellant Beaumont Independent

School District (BISD) raises seven issues challenging the trial court’s entry of a

temporary injunction and the trial court’s implicit denial of BISD’s plea to the

jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4), (8) (West

Supp. 2015). We reverse and dissolve the trial court’s temporary injunction,

reverse the trial court’s implicit denial of BISD’s challenge to the trial court’s



                                        1
subject matter jurisdiction, and render judgment dismissing Guillory’s case against

BISD for lack of subject matter jurisdiction.

                           FACTUAL BACKGROUND

      Appellee Shaunte Guillory filed an original petition and application for

temporary restraining order and permanent injunction against BISD “for retaliating

against her in violation of Chapter 554 of the Texas Government Code, commonly

known as the Texas Whistleblower Act.” Guillory alleged that she was promoted

to principal of Jones-Clark Elementary School for the 2013-2014 school year.

According to Guillory, “[t]here were no grievances, complaints[,] or even

accusations against [her] until she complained to the Superintendent of BISD about

Assistant Superintendent Dwain Augustine’s lack of communication” regarding

BISD’s dismissal of a teacher at Jones-Clark. Guillory asserted that on October 29,

2013, Augustine and Emi Johnson, an investigator from the Texas Education

Agency (TEA), visited Jones-Clark Elementary, and Johnson questioned Guillory

regarding an allegation of cheating. Guillory contended that she “cooperated with

Emi Johnson and answered all [of] her questions to the best of her knowledge[,]”

and Augustine was in the room during the meeting. According to Guillory,

Augustine, as well as the TEA and Region V employees, were part of a 2014

investigation against Jones-Clark’s previous principal, Jacqueline Lavergne.

                                          2
      Guillory pleaded that superintendent John Frossard called a meeting of all

principals on January 29, 2015, and Guillory reported to Frossard at the meeting

that Augustine “had not completely and accurately communicated with her”

regarding the non-renewal of the teacher’s contract, which put Guillory “in the

awkward position of having to hire a replacement teacher at the 11th hour[.]”

According to Guillory’s petition, “[t]hat incident clearly sparked the successive

acts of retaliation against Guillory.” Guillory asserted that on June 25, 2015,

Augustine told her that she was being reassigned to King Middle School as an

assistant principal. Guillory pleaded that on the same day, she met and was

interviewed by Sam Kitrell, an investigator from the District Attorney’s office,

who was inquiring about the previous principal, Lavergne. According to Guillory,

Kitrell again interviewed her regarding Lavergne on July 10, 2015, and on the

same date, she received a letter from BISD, dated July 1, 2015, which stated that

she was reassigned to King Middle School as an assistant principal and her annual

salary would be cut from $79,515 to $58,088.

      On July 16, 2015, Guillory filed a grievance, in which she alleged that BISD

had breached its contract with her by demoting her and reducing her salary.

Guillory did not contend in this grievance that BISD was retaliating against her for

reporting information to law enforcement officials. According to Guillory, on July

                                         3
31, 2015, Augustine instructed her via email to cease all administrative activities

until further notice, and Guillory pleaded that “BISD and Augustine were clearly

angry because Guillory had started giving information to law enforcement

officials.” Augustine also asked Guillory to meet with him on August 3, 2015, and

he placed Guillory on administrative leave.

      On August 6, 2015, Guillory filed a second grievance, in which she alleged

that BISD was retaliating against her “for filing the first grievance and for

reporting information to law enforcement officials regarding a criminal

investigation against the previous administration at Jones-Clark Elementary

School.” Augustine held a hearing on Guillory’s second grievance and issued a

written decision, in which he concluded that both grievances were meritless.

According to Guillory, BISD’s Chief Operations Officer, Robert Calvert, “sent her

a letter on September 26, 2015, demanding that she reveal what she had told the

District Attorney’s Investigator and the FBI about BISD and its personnel.”

Guillory alleged in her petition that “[t]he pretextual reasons for her pending

termination include participating in BISD’s widespread custom of re-testing

benchmark tests and ending Lavergne’s practice of directing teachers to meet

parents at the pick-up line for the purpose of securing signatures necessary for

evidence of Title I Parent Involvement.”

                                           4
      Guillory asserted claims for retaliation under the Texas Whistleblower Act

and retaliation for exercise of free speech. She requested a temporary restraining

order, temporary injunction, and permanent injunction. Guillory contended that if

the “application is not granted, harm is imminent and irreparable because

[Guillory] will suffer loss of employment in violation of the whistleblower act[,]”

and Guillory has no adequate remedy at law because her name had been

recommended for termination and the Board could vote on her termination at its

next meeting. Guillory maintained that the loss of her employment would “cause

irreparable financial loss.”

      BISD filed a response to Guillory’s application for temporary injunction, in

which BISD contended that (1) Guillory had failed to demonstrate irreparable harm

and (2) that the trial court lacked subject matter jurisdiction. In addition, BISD

filed a plea to the jurisdiction, in which it asserted that the trial court lacks subject

matter jurisdiction because BISD is entitled to governmental immunity.

Specifically, BISD argued that BISD is immune from Guillory’s claims under the

Whistleblower Act because “Guillory has not pleaded (and cannot plead) all of the

requisite, jurisdictional elements in support of this claim[,]” and “BISD is immune

from Guillory’s free speech retaliation claim under the Texas Constitution[.]”

BISD maintained that Guillory could not remedy her claim’s jurisdictional failings

                                           5
by amending her pleadings. BISD asserted that Guillory could not (1) establish that

she suffered an adverse personnel action; (2) show that she made a good faith

report of a violation of law; and (3) demonstrate “but-for” causation between her

reports to law enforcement and her placement on administrative leave. In addition,

BISD contended that (1) Guillory’s free speech retaliation claim suffers from fatal

jurisdictional flaws because BISD is entitled to governmental immunity; (2)

Guillory could not demonstrate a viable claim; and (3) Guillory failed to exhaust

her administrative remedies.

      BISD attached numerous exhibits to its plea to the jurisdiction. The first

exhibit is Augustine’s affidavit, in which he averred, “I deny that I retaliated

against Ms. Guillory in any manner, and I am unaware of any BISD employee or

official having done so.” Augustine also averred that BISD had been investigating

alleged testing improprieties at Jones-Clark since the 2012-2013 school year, and

that when Augustine became involved in the investigation in April 2013, Guillory

was an assistant principal at Jones-Clark and the “campus testing coordinator.”

Augustine also averred that he met with Guillory on June 25, 2015, to inform her

that she would be reassigned to an assistant principal position at a different

campus, and that the “decision was made after learning that Jones-Clark



                                        6
Elementary School would receive a ‘Needs Improvement’ rating for the second

consecutive year based on the campus’[s] STA[A]R test results.”

      Furthermore, Augustine averred, “[a]s I was unaware that Ms. Guillory had

allegedly reported testing improprieties to investigators from the District

Attorney’s [o]ffice and the FBI in June and July of 2015, her purported

participation in these conversations played no role whatsoever in my decision to

place her on paid administrative leave[.]” Augustine stated, “I placed [Guillory] on

administrative leave with pay to temporarily remove her from the campus in order

to expedite the investigative process and to protect all parties involved in the

investigation, including Ms. Guillory.”

      Also attached to BISD’s plea to the jurisdiction was a copy of Guillory’s

second grievance, which was filed by her union representative on her behalf. BISD

also included a copy of Augustine’s written ruling denying Guillory’s second

grievance. In the ruling, Augustine explained that he had no “independent

evidence” that Guillory met with law enforcement or that she reported a violation

of state standards during that meeting and a good faith report under the

Whistleblower Act “cannot be solely based on innuendo and rumor.” Augustine

further stated as follows:

      [T]here is no evidence of my knowledge of your “report.” In your
      level one hearing, you claim that you reported testing irregularities to
                                          7
      the District Attorney and FBI Investigators on June 25, 2015[,] and
      also on July 10, 2015. I met with you on June 25 and August 3 to
      address your employment status with the District. During neither
      meeting did you share with me that you had been interviewed by law
      enforcement, that you had been made aware of testing irregularities by
      teachers on your campus, or that you had reported testing
      irregularities to law enforcement personnel.

      Moreover, BISD attached as evidence the transcript of the hearing on

Guillory’s second grievance. During the hearing, Guillory stated that she reported

“alleged testing irregularities against the previous administration[]” to a “District

Attorney Investigator and the FBI” on June 25, 2015, and July 10, 2015. Guillory

stated, “I reported what was told to me once the investigation started. I didn’t

report anything that I saw for myself, that anybody reported to me[.]”Guillory

explained that law enforcement contacted her regarding the investigation. When

asked why she believed Augustine knew of her report to law enforcement, Guillory

stated, “the same day you gave me a demotion is the same day I spoke with . . . law

enforcement.”

      BISD also attached its August 3, 2015, letter to Guillory, in which BISD

stated that it was investigating allegations of testing irregularities at Jones-Clark

and noted that, as campus testing coordinator for school years 2011-2012 and

2012-2013, Guillory was “responsible for ensuring compliance with all testing

protocol including state assessment and district benchmark testing.” The letter

                                         8
stated that BISD had evidence that Guillory “failed to enforce testing protocol and

failed to comply with Beaumont ISD Board Policy and the Educator Code of

Ethics[.]” BISD alleged in the letter that Guillory coerced teachers to “re-test

benchmarks, thereby submitting fraudulent benchmark data[,]” “failed to report

any suspected violations of testing security to the district testing coordinator[,]”

and “failed to monitor and analyze instructional processes and academic progress

in light of two years of low assessment data and known allegations of cheating.”

      The affidavit of BISD’s Chief Operations officer, Robert Calvert, was also

attached to BISD’s plea to the jurisdiction. Calvert averred that he did not retaliate

against Guillory and that he was “unaware of any BISD employee or official

having done so.” Calvert’s affidavit also stated that Calvert was involved in the

investigation of Guillory’s alleged conduct. According to Calvert, BISD’s

investigation “specifically concerned Ms. Guillory’s job performance as a campus

administrator at Jones-Clark Elementary School regarding allegations of testing

improprieties.” Calvert stated that BISD discovered evidence that led it to conclude

that Guillory directed teachers to improperly administer benchmark testing, and

that Guillory had admitted that she participated in a practice in which teachers

obtained falsified parent participation forms. Calvert concluded that good cause

existed to propose termination or nonrenewal of Guillory’s employment contract.

                                          9
Furthermore, BISD included a copy of Guillory’s written response to BISD’s

request for information concerning the individuals who approached her during the

week of June 25, 2015, and provided her with information regarding testing

irregularities.

       According to the information provided by Guillory, two teachers informed

her that a third-grade teacher had been fired for cheating, and that a former fourth-

grade teacher had reported the third-grade teacher. Guillory’s response also

indicated that on April 8, 2013, Augustine told her of an allegation of cheating

against another fourth-grade teacher at Jones-Clark, and Augustine told Guillory he

had reported the allegation to the TEA. Guillory stated that she told Augustine that

the allegation was not reported to her and that she was not aware of any testing

irregularities. According to Guillory’s response, when Johnson, TEA investigator,

visited the campus with Augustine on October 29, 2013, Guillory told her,

             I never witnessed the teacher doing anything wrong and it was
       not reported to me. I explained that Dr. Augustine received the
       information in regards to this . . . allegation. And in a previous meeting
       on April 8, 2013[,] Dr. Augustine stated that this was reported to him
       and that he had reported this to TEA.

In addition, Guillory’s response stated that an ESL teacher told her that another

former teacher bragged about writing a letter regarding testing irregularities during

the tenure of Lavergne. Guillory’s response explained, “According to the

                                          10
information told to me[,] these . . . allegations occurred during the 2011-2012 and

2012-2013 school year and during the years of existence of French Elementary.”

      The trial court conducted a lengthy hearing on Guillory’s application for

temporary injunction. At the hearing, Frossard testified that some of the staff at

Jones-Clark “were coerced or encouraged to go out when parents were picking up

the kids and lean into the windows and try and get parents to sign the forms.”

Frossard explained, “[m]y understanding was [Guillory] stopped the practice as

principal, but she didn’t report it when she knew it as assistant principal.” Frossard

also testified that during Guillory’s tenure, “re-teaching and re-testing was

occurring during the initial [benchmark] testing.” Frossard explained that if a

student was taking the benchmark test and a teacher saw that the student had

missed a question, they would “re-teach” it and then have the student answer the

question before the test was ever scored and sent to the administration.

      Augustine testified that his recommendation to reassign Guillory was based

upon campus performance data from 2014 and 2015. Augustine explained that he

had been investigating Jones-Clark since 2013, and that although Guillory was part

of the overall investigation, Guillory did not become a focus of the investigation

until the 2014-2015 school year. According to Augustine, some teachers informed

him that Guillory had instructed a teacher to retest a benchmark test during

                                         11
Guillory’s tenure as assistant principal at Jones-Clark. Augustine explained that

during the 2011-2012 and 2012-2013 school years, when Guillory was assistant

principal, she was the campus testing coordinator, which meant she was “the

person that’s responsible for the overall testing program on that campus for State

assessments: test security, training, assignment of teachers, test administrators —

the whole realm of testing on that campus.” Augustine explained that a testing

coordinator has a duty to report any testing irregularities or improprieties to the

school district.

      Guillory testified that law enforcement contacted her by visiting the campus

unannounced. Guillory explained, “I’m the only one they spoke to that day. There

was no one else there.” Guillory explained that she reported what others had told

her regarding possible violations, but she did not conduct her own investigation.

Guillory testified that she did not tell Augustine about having been interviewed by

law enforcement until after she had received written notice from Augustine

regarding her reassignment to assistant principal.

      The trial court signed an order granting Guillory’s application for temporary

injunction. The order enjoined BISD from the following:

      committing or continuing to commit any action adverse to the
      interests of Plaintiff, which would harm Plaintiff’s career and
      employment; disparaging or harming the reputation or career of the
      Plaintiff; initiating or threatening to initiate termination of Plaintiff’s
                                          12
      employment; making any negative or adverse reports against Plaintiff;
      [and] destroying any records related to Plaintiff and/or her
      employment[.]

The trial court found in the order that absent the entry of its temporary injunction,

Guillory “will suffer immediate and irreparable harm, for which there is no

adequate remedy at law[.]” Additionally, the trial court found that unless it

enjoined BISD, Guillory “will be harmed by being subjected to retaliation, the

termination of her employment and damage to her reputation and career, and in

retaliation for Plaintiff’s exercise of rights secured to her by the Constitution of the

State of Texas[.]” Furthermore, the trial court determined that “there is a

substantial likelihood” that Guillory will prevail on the merits at trial. BISD then

appealed. By entering the temporary injunction order, the trial court implicitly

denied BISD’s plea to the jurisdiction. See generally Thomas v. Long, 207 S.W.3d

334, 339-40 (Tex. 2006).

                              ISSUES ONE AND TWO

      In issue one, BISD asserts that the trial court erred by determining that

BISD’s governmental immunity was waived as to Guillory’s claim under the

Whistleblower Act. In issue two, BISD contends the trial court erred by

determining that BISD’s governmental immunity was waived with respect to

Guillory’s claim under Article I, section 8 of the Texas Constitution.

                                          13
                                      Issue One

       Whether a trial court has subject-matter jurisdiction is a question of law that

we review de novo. Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d

849, 855 (Tex. 2002). “A plea to the jurisdiction can be used to challenge the

plaintiff’s pleadings, the existence of jurisdictional facts to support the pleadings,

or both.” Fannin Cty. Cmty. Supervision and Corr. Dep’t v. Spoon, No. 06-13-

00103-CV, 2014 WL 3513388, at *4 (Tex. App.—Texarkana July 16, 2014, pet.

denied) (mem. op.). “In reviewing a trial court’s ruling on a plea to the jurisdiction,

we first look to the pleadings to determine if jurisdiction is proper.” Id. at *5. The

plaintiff bears the burden of pleading facts which affirmatively demonstrate the

trial court’s jurisdiction. Id. We must look to the pleader’s intent, liberally construe

the pleadings in favor of jurisdiction, and accept the allegations in the pleadings as

true. Id.

       “If a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider relevant evidence on that issue even where those facts may implicate

the merits of the cause of action.” Id.; see Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 555 (Tex. 2000). When evidence is submitted that implicates the

merits of the case, our standard of review “mirrors that of a traditional summary

judgment motion.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,

                                          14
635 (Tex. 2012); see Tex. R. Civ. P. 166a(c). The defendant initially carries the

burden to demonstrate that the trial court lacks jurisdiction, and if it does so, the

plaintiff must then show that a disputed material fact exists regarding the

jurisdictional issue. Garcia, 372 S.W.3d at 635. Subject-matter jurisdiction may be

raised for the first time on interlocutory appeal. Rusk State Hosp. v. Black, 392

S.W.3d 88, 95-96 (Tex. 2012); see Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(8).

      “A state or local governmental entity may not suspend or terminate the

employment of, or take other adverse personnel action against, a public employee

who in good faith reports a violation of law by the employing governmental entity

or another public employee to an appropriate law enforcement authority.” Tex.

Gov’t Code Ann. § 554.002(a) (West 2012). A public employee who alleges a

violation of the Whistleblower Act “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.” Id. § 554.0035 (West 2012).

      To qualify for the Whistleblower Act’s waiver of governmental immunity,

Guillory had to demonstrate the following elements: (1) she was a public

employee; (2) she made a good faith report of a violation of law; (3) she made the

                                         15
report to an appropriate law enforcement authority; and (4) she suffered retaliation

as a result of making the report. See id. § 554.002(a). If adverse personnel action

occurs against a public employee not later than the ninetieth day after the date on

which the employee reported a violation of law, there is a rebuttable presumption

that the adverse personnel action occurred because the employee made the report.

Tex. Gov’t Code Ann. 554.004(a) (West 2012).

      In this case, Guillory pleaded that on the same date she was initially

interviewed by law enforcement, Augustine told her that she was being reassigned

from principal of Jones-Clark to assistant principal of King Middle School. As

previously discussed, in her initial grievance, Guillory did not allege retaliation. In

addition, Augustine averred in his affidavit that he was unaware that Guillory had

reported any alleged testing improprieties to investigators from the District

Attorney’s Office. Augustine again denied knowledge of Guillory’s alleged report

in his written ruling on Guillory’s second grievance. Augustine testified that the

proposed reassignment of Guillory was due to campus performance data.

      Frossard explained that Guillory failed to report the practices of re-teaching,

re-testing, and obtaining parental signatures in the carpool line. In addition,

Guillory testified at the hearing that investigators spoke only to her on June 25,

2015, because there was no one else on campus, and she explained that she did not

                                          16
tell Augustine about having been interviewed by law enforcement until after she

had received notice regarding her reassignment to the position of assistant

principal. We conclude that the evidence rebuts the presumption that BISD

proposed non-renewal of Guillory’s contract because of her report. See Tex. Gov’t

Code Ann. § 554.004(a). Guillory has failed to establish that she suffered

retaliation as a result of making a report to law enforcement. See id. § 554.002(a);

Blue, 34 S.W.3d at 555. Accordingly, Guillory failed to demonstrate that BISD’s

governmental immunity was waived as to her claim under the Whistleblower Act,

and the trial court erred by implicitly denying BISD’s plea to the jurisdiction when

it signed the temporary injunction. We sustain issue one.

                                      Issue Two

      In its second issue, BISD argues that the trial court erred by implicitly

determining that BISD’s governmental immunity was waived with respect to

Guillory’s claim under Article I, section 8 of the Texas Constitution. Article I,

section 8 of the Texas Constitution provides as follows, in pertinent part: “Every

person shall be at liberty to speak, write or publish his opinions on any subject,

being responsible for the abuse of that privilege[.]” Tex. Const. art. I, § 8. Article I,

section 8 allows a claimant to seek equitable relief for violation of her right to free

speech. See id.; City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995).

                                           17
However, there is no common law cause of action for damages for alleged

violations of the Texas Constitution. Bouillion, 896 S.W.2d at 147.

      A party generally must exhaust all administrative remedies before seeking

judicial review of an agency’s action. Subaru of Am., Inc., v. David McDavid

Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). Chapter 21 of the Education Code

provides an administrative procedure that allows a school district employee under a

term contract to seek judicial review of an adverse employment decision. Houston

Indep. Sch. Dist. v. Rose, No. 01-13-00018-CV, 2013 WL 3354724, at *3 (Tex.

App.—Houston [1st Dist.] July 2, 2013, no pet.). “[W]hen a school employee’s

constitutional claims are only ‘ancillary to and supportive of a complaint about the

board’s handling of an employment contract or application of school law,’ the

employee must first exhaust the administrative process” before seeking judicial

relief. Id., at *4 (quoting Dotson v. Grand Prairie Indep. Sch. Dist., 161 S.W.3d

289, 292-93 (Tex. App.—Dallas 2005, no pet.)). “An employee’s complaint of

retaliatory discharge ‘is precisely the kind of complaint that must first be presented

in an administrative hearing.’” Rose, 2013 WL 3354724, at *4 (quoting

Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 682 (Tex. App.—Tyler

1996, no writ)). Accordingly, the trial court lacked subject matter jurisdiction over

Guillory’s free speech retaliation claim. See Rose, 2013 WL 3354724, at *4. We

                                         18
sustain issue two. Because they would not result in greater relief, we need not

address BISD’s remaining issues. See Tex. R. App. P. 47.1.

      The trial court enjoined BISD from taking action to propose termination or

nonrenewal of Guillory’s employment. Because, as explained above, the trial court

lacked subject matter jurisdiction over Guillory’s two causes of action (retaliation

under the Whistleblower Act and free speech retaliation), the trial court likewise

lacked subject-matter jurisdiction to enter a temporary injunction against BISD.

See generally Occidental Chem. Corp. v. ETC NGL Transp., LLC, 425 S.W.3d

354, 359 n.3 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d) (“[I]n an appeal

of a temporary injunction, we may always consider whether the injunction is void

for lack of subject[-]matter jurisdiction.”). Accordingly, we reverse the trial court’s

temporary injunction order and dissolve it, reverse the trial court’s implicit denial

of BISD’s plea to the jurisdiction, and render judgment dismissing Guillory’s

claims against BISD for lack of subject-matter jurisdiction.

      REVERSED AND RENDERED.



                                               ______________________________
                                                      STEVE McKEITHEN
                                                         Chief Justice



                                          19
Submitted on April 14, 2016
Opinion Delivered May 12, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.




                                       20
