                            NUMBER 13-12-00590-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

WESLACO INDEPENDENT SCHOOL
DISTRICT AND RICHARD RIVERA,                                             Appellants,

                                           v.

ADAN PEREZ JR.,                                                             Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
           Before Justices Rodriguez, Benavides and Longoria
              Memorandum Opinion by Justice Benavides

      By two issues, appellants Weslaco Independent School District (the District) and

Richard Rivera appeal the trial court’s denial of the District’s motion to dismiss claims
asserted by appellee, Adan Perez Jr., against Rivera. We reverse and render.

                                          I.       BACKGROUND

        From 2004 until June 2010, Perez was employed as the District’s risk manager.

In this position, Perez oversaw the District’s employee benefit plans, including the school

district’s self-funded workers’ compensation fund and health insurance program. In

June 2010, Perez’s employment with the District was terminated. In March 2011, Perez

filed suit against WISD and Rivera, the District’s superintendent.

        By his live petition,1 Perez alleged that in early 2009, he became aware of the

District’s purported desire and eventual action to withdraw funds from the District’s

self-funded insurance programs “for the specific purpose of beginning construction of a

new ‘Press Box’ at [the District’s] football stadium.” Perez asserted in his petition that he

was “rebuked” when he informed the District’s chief financial officer that such withdrawal

of funds was illegal. Perez further asserted that he made several attempts to meet with

Rivera about the issue, but “was denied access” to him. Perez alleges that he continued

to present his complaints to his supervisor, as well as “other administrators and members

of [the District’s] Board of Trustees.” According to Perez’s petition, the District and

Rivera sought to “silence” him and put a plan in place to terminate his employment.

        Perez’s lawsuit against the District and Rivera asserted various causes of action

including: (1) breach of contract; (2) breach of Perez’s right of reasonable expectation to


        1
           Perez initially filed suit in Hidalgo County district court. The District then filed a notice of removal
to the United States District Court for the Southern District of Texas, McAllen Division. See 28 U.S.C.A. §
1446 (2013). Perez subsequently amended his complaint and the cause was remanded back to Hidalgo
County district court.




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renewal of his contract; (3) violations of the Texas Whistleblower Act, see TEX. GOV’T

CODE ANN. § 554.002 (West 2004), by the District and Rivera, in his individual capacity;

(4) constitutional violations of due course of law rights, equal protection rights, and free

speech under the Texas Constitution; and (5) common-law retaliation. Perez sought

actual, exemplary, and statutory damages, attorney’s fees, pre- and post-judgment

interests, costs, and any other relief in law and in equity.

        The District filed a motion to dismiss all claims asserted against it pursuant to

101.106(e) of the civil practice and remedies code.2 TEX. CIV. PRAC. & REM. CODE ANN. §

101.106(e) (West 2011). The trial court held a hearing and denied the District’s motion

to dismiss. This interlocutory appeal ensued. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(5) (West Supp. 2011); see also City of Webster v. Myers, 360 S.W.3d 51,

54–55 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (holding that section

51.01(a)(5) grants appellate jurisdiction to review a trial court’s interlocutory order

denying the City’s motion to dismiss).

                                   II.     RIVERA’S IMMUNITY

        By its first issue, the District asserts that Rivera is immune from Perez’s claims of

common law retaliation and constitutional tort claims.

        A.      Standard of Review

        A trial court’s granting or denial of a motion to dismiss under section 101.106 of the

Texas Tort Claims Act raises an issue of immunity as conferred to employees of


        2
         The District also filed a plea to the jurisdiction, which the trial court denied, and the District
appealed. This Court addresses the District’s plea to the jurisdiction in a companion appeal under Cause
Number 13-12-581-CV.



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governmental units.     See Franka v. Velasquez, 332 S.W.3d 367, 371 n. 9 (Tex. 2011)

(“By moving for summary judgment under [section 101.106], defendants were asserting

claims of immunity.”); Myers, 360 S.W.3d at 56. If immunity from suit applies, a trial court

lacks subject matter jurisdiction over the case. See Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Subject matter jurisdiction is a question of

law which we review de novo. Id. at 226.

       B.     Discussion

       Under the Tort Claims Act’s election of remedies provision, if a suit is filed against

both a governmental unit and any of its employees, the employees shall immediately be

dismissed on the filing of a motion by the governmental unit.       TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(e).     Here, it is undisputed that the District is a governmental unit.

See id. § 101.001(3)(B) (West Supp. 2011) (defining “governmental unit” as a political

subdivision of the state including a school district). In his petition, Perez’s alleges facts

involving wrongful conduct by Rivera in his capacity as the District’s superintendent.

Additionally, Perez’s live petition makes numerous references to the actions of the

“Defendants” collectively, with the exception of his attempt to hold Rivera personally

liable under the Texas Whistleblower Act.     See TEX. GOV’T CODE ANN. § 554.002.

       Further, Perez’s argument that his claims fall outside the scope of the Tort Claims

Act, and therefore render the election of remedies provision inapplicable, is

unpersuasive. The Texas Supreme Court held that “because the Tort Claims Act is the

only, albeit limited, avenue for common-law recovery against the government, all tort

theories alleged against a governmental unit, whether it is sued alone or together with its




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employees, are assumed to be “under [the Tort Claims Act]” for purposes of section

101.106.” Mission Consol. Ind. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008)

(citing Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997)).        The Tort Claims Act

provides a limited waiver of the government’s immunity to the following set of tort claims,

none of which are asserted by Perez in his petition:

       (1) property damage, personal injury, and death proximately caused by the
           wrongful act or omission or the negligence of an employee acting within
           his scope of employment if:

           (A) the property damage, personal injury, or death arises from the
               operation or use of a motor-driven vehicle or motor-driven
               equipment; and

           (B) the employee would be personally liable to the claimant according to
               Texas law; and

       (2) personal injury and death so caused by a condition or use of tangible
           personal or real property if the governmental unit would, were it a private
           person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

       We conclude that Perez’s tort claims for common law retaliation and damages for

violation of constitutional rights are barred by immunity against the District, and by

extension Rivera, under sections 101.021 and 101.106(e). Accordingly, we conclude

that the trial court lacks subject-matter jurisdiction to hear these causes. The District’s

first issue is sustained.

                   III.     TEXAS WHISTLEBLOWER ACT LIABILITY

       By its second issue, the District contends that the trial court lacks subject matter

jurisdiction to hear Perez’s whistleblower claims against Rivera.




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       A. Waiver and Standard of Review

       As a preliminary matter, Perez argues that the District’s second issue was not

raised at the trial court and was therefore waived.            See TEX. R. APP. P. 33.1(a).

However, subject-matter jurisdiction cannot be waived and can be raised at any time.

Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008). Accordingly, we will review all

questions involving subject-matter jurisdiction on appeal.      Miranda, 133 S.W.3d at 226.

       B. Discussion

       The relevant statute provides as follows:

       (a) 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.

       (b) In this section, a report is made to an appropriate law enforcement
           authority if the authority is a part of a state or local governmental entity or
           of the federal government that the employee in good faith believes is
           authorized to:

              (1) regulate under or enforce the law alleged to be violated in the
                  report; or

              (2) investigate or prosecute a violation of criminal law.

TEX. GOV’T CODE ANN. § 554.002 (West 2004).          Sovereign immunity is expressly waived

with regard to a claim brought under section 554.002.               TEX. GOV’T CODE ANN. §

554.0035 (“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.”).

       The issue here, however, is whether Perez may assert a private cause of action

against Rivera, in his individual capacity, for alleged violations of the Texas




                                               6
Whistleblower Act. We conclude that he may not. The Whistleblower Act allows an

aggrieved employee to sue the “employing state or local governmental entity,” but not a

governmental employee, like Rivera, in his individual capacity.       See id.; Alejandro v.

Robstown Ind. Sch. Dist., 131 S.W.3d 663, 668 (Tex. App.—Corpus Christi 2004, no

pet.). Under section 554.008, an individual defendant’s personal liability is limited to a

civil penalty, TEX. GOV’T CODE ANN. § 554.008(e) (West 2004), and the statutory right to

sue to collect a civil penalty under this section belongs to the “attorney general or

appropriate prosecuting attorney,” not a private party, like Perez.   TEX. GOV’T CODE ANN.

§ 554.008(b); see Alejandro, 131 S.W.3d at 668.         The trial court therefore erred in

denying the District’s motion to dismiss Perez’s whistleblower claims against Rivera in

his individual capacity.   Accordingly, we sustain the District’s second issue.

                                   IV.    CONCLUSION

       We reverse the trial court’s denial of the District’s motion to dismiss and render

judgment that Perez’s causes of actions against Rivera for common law retaliation,

damages for constitutional violations, and Texas Whistleblower Act violations are

dismissed with prejudice.



                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Delivered and filed the
25th day of July, 2013.




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