                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS
 TEXAS DEPARTMENT OF AGING                        §
 AND DISABILITY SERVICES,                                         No. 08-10-00085-CV
                                                  §
                   Appellant,                                        Appeal from the
                                                  §
 v.                                                                210th District Court
                                                  §
 ROSA MARIA BELTRAN,                                            of El Paso County, Texas
                                                  §
                   Appellee.                                        (TC# 2009-1678)
                                                  §

                                           OPINION

       Appellee, Rosa Maria Beltran (Beltran), brought action under the Anti-Retaliation Law

against Appellant, the Texas Department of Aging and Disability Services (the Department), her

employer, for wrongful discharge in retaliation for filing a workers’ compensation claim. The

Department appeals the trial court’s denial of its plea to the jurisdiction. We affirm.

                                         BACKGROUND

       Beltran, an employee of the Department since 1990, alleged that she sustained injuries to her

shoulder and elsewhere as a consequence of her job-related duties and thereafter filed a workers’

compensation claim. The Department terminated Beltran’s employment on March 31, 2008. Beltran

brought suit against the Department, alleging that the Department terminated her in retaliation for

filing a worker’s compensation claim, an act prohibited under Section 451.001 of the Texas Labor

Code, also known as the Anti-Retaliation Law. TEX . LAB. CODE ANN . Ch. 451, § 451.001.

       The Department filed a plea to the jurisdiction in which it sought to dismiss Beltran’s suit

for lack of subject-matter jurisdiction. In its plea, the Department asserted that it was protected by

sovereign immunity because the “Legislature has not clearly and unambiguously waived sovereign
immunity for [the Anti-Retaliation Law]” as required after the Legislature’s 2001 enactment of

Section 311.034 of the Code Construction Act. TEX . GOV ’T CODE ANN . § 311.034 (Waiver of

Sovereign Immunity) (West 2005). Without conducting a hearing, the trial court denied the

Department’s plea to the jurisdiction.1

                                                  DISCUSSION

         In a single issue, the Department contends that its sovereign immunity under the Anti-

Retaliation Law and the State Applications Act has not been clearly and unambiguously waived as

required after the Legislature’s 2001 enactment of Section 311.034 of the Code Construction Act,

and for this reason, the Department asserts that the trial court lacks subject-matter jurisdiction over

this lawsuit. TEX . GOV ’T CODE ANN . § 311.034 (West 2005).

                                               Standard of Review

         A trial court’s subject-matter jurisdiction is defeated by sovereign immunity from suit and

is therefore properly asserted in a plea to the jurisdiction. State v. Lueck, 290 S.W.3d 876, 880 (Tex.

2009); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224, 226-27 (Tex. 2004).

Whether a court has subject-matter jurisdiction is a question of law. Tex. Natural Res. Conservation

Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We review de novo a challenge to a trial

court’s subject-matter jurisdiction. Miranda, 133 S.W.3d at 228; IT-Davy, 74 S.W.3d at 855.

                                         Sovereign Immunity & Waiver

         The State of Texas and its agencies, such as the Department, are immune from suit and from

liability unless the Legislature expressly waives sovereign immunity.2 Kerrville State Hosp. v.

        1
           The trial court scheduled a hearing to consider the Department’s plea to the jurisdiction but we find no
evidence in the record that a hearing was conducted.

        2
            Encompassed in sovereign immunity are the distinct principles of immunity from suit and immunity from
liability. Miranda, 133 S.W .3d at 224. The first deprives a court of subject-matter jurisdiction while the second is
an affirmative defense which cannot be raised by a plea to the jurisdiction. Lueck, 290 S.W .3d at 880; Miranda, 133
Fernandez, 28 S.W.3d 1, 3 (Tex. 2000). Consent to suit, which is pivotal to a waiver of sovereign

immunity, must ordinarily rest in a constitutional provision or legislative enactment. Wichita Falls

State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003). When the text and history of a statute

leaves room to doubt the Legislature’s intent to waive immunity from suit, we are less likely to find

a waiver and will resolve any ambiguities by retaining immunity. Id. at 697.

                               Legislative Intent and Statutory Construction

         The issue before us is one of statutory construction. When interpreting any statute, our

primary goal is to determine and give effect to the Legislature’s intent in enacting the provision. In

re Canales, 52 S.W.3d 698, 702 (Tex. 2001) (orig. proceeding). A statute’s words are the surest

guide to its intended meaning and, therefore, we focus our analysis upon the plain language of the

statute. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999); see

also TEX . GOV ’T CODE ANN . § 311.011 (West 2005) (words and phrases should be read in context

and, unless they have acquired a specialized or technical meaning, construed according to their

common usage). Where the text of a statute is unambiguous, we generally have no need to utilize

other rules of construction or methods of interpretation to aid in the determination of the provision’s

intended meaning. In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007).

         Before 2001, Texas courts required clear and unambiguous legislative expression before

holding that sovereign immunity was waived. See Fernandez, 28 S.W.3d at 3; City of La Porte v.

Barfield, 898 S.W.2d 288, 291 (Tex. 1995); Mount Pleasant Indep. Sch. Dist. v. Estate of Lindberg,

766 S.W.2d 208, 211 (Tex. 1989); Duhart v. State, 610 S.W.2d 740, 741 (Tex. 1980). In 2001, the


S.W .3d at 224. Consequently, even when the State acknowledges liability on a claim, until the Legislature consents
to suit, immunity bars a remedy. Wichita Falls State Hosp. v. Taylor, 106 S.W .3d 692, 696 (Tex. 2003). Likewise,
although often used interchangeably, the concepts of sovereign immunity and governmental immunity involve two
distinct concepts. Sovereign immunity refers to the State’s immunity from suit and liability while also protecting the
State’s agencies, boards, hospitals, and universities. Governmental immunity from liability protects political
subdivisions of the State such as counties, cities, and school districts. Taylor, 106 S.W .3d at 694 n.3.
Legislature enacted Section 311.034 of the Code Construction Act which codified the courts’ clear-

and-unambiguous language requirement. TEX . GOV ’T CODE ANN . § 311.034 (West 2005). Section

311.034 also specifies how courts should interpret statutes containing the term “person” in the

context of sovereign-immunity waiver analysis by providing:

         In order to preserve the legislature’s interest 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.3

TEX . GOV ’T CODE ANN . § 311.034 (West 2005).

                              State Applications Act and Anti-Retaliation Law

         Before the enactment of Section 311.034, the Texas Supreme Court addressed the very issue

before us today: whether the Legislature clearly and unambiguously waived immunity regarding

violations of the Anti-Retaliation Law as applied through the SAA. See Kerrville State Hosp. v.

Fernandez, 28 S.W.3d 1 (Tex. 2000). In Fernandez, the Court determined upon its examination of

the SAA that the Legislature intended to waive state agencies’ sovereign immunity from suit for

alleged retaliatory discharge of state employees. Fernandez, 28 S.W.3d at 3. Here, the Department

raises the same issue that was before the Court in Fernandez but contends that the Legislature’s

enactment of Section 311.034 now abrogates the Texas Supreme Court’s reasoning in Fernandez.

We disagree.

         In Fernandez, the Texas Supreme Court interpreted the 1989 statutory predecessors to the




         3
              Section 311.005 provides that “person” includes a corporation, organization, government or
governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.
T EX . G O V ’T C O D E A NN . § 311.005(2) (W est 2005).
SAA provisions at issue today.4 See Act of Dec. 13, 1989, 71 st Leg.2d C.S., ch. 1, § 15.44, sec.15,

1989 Tex. Gen. Laws 1, 111–12 (formerly codified as TEX . REV . CIV . STAT . art. 8309g, § 15). The

Fernandez Court explained that the clear-and-unambiguous waiver requirement was merely a

method to guarantee that courts adhere to legislative intent and that the doctrine should not be

applied mechanically to defeat the true purpose of the law. Fernandez, 28 S.W.3d at 3.

        In deciding Fernandez, the Court focused its attention on Section15(b) of the 1989 version

of the SAA which provided:

        [The Anti-Retaliation Law] is adopted except to the extent it is inconsistent with this
        article. For purposes of that Act, the individual agency shall be considered the
        employer.5

Fernandez, 28 S.W.3d at 4, 6-7. The Court concentrated its analysis on the second sentence of

Section 15(b).6 In doing so, the Court determined that far from dealing with the mere incorporation

of the Anti-Retaliation Law into the SAA, the second sentence of Section 15(b), which identifies the

state agency as the employer, was a clearer expression, and one which left no reasonable doubt, of

the Legislature’s intent to waive state agencies’ sovereign immunity for state workers’ claims of

impermissible retaliation. Fernandez, 28 S.W.3d at 6, 7-8, 9. There was, the Court said, no other

sensible construction of Section15(b) because if the state agencies were not to be included in the

term “person,” Section 15(b) would have had no reason to designate the state agencies as


        4
            The 1989 version of the SAA was recodified in 1993 as Chapter 501 of the Texas Labor Code. See Act
of June 19, 1997, 75th Leg., R.S., ch. 1098, § 3, 1997 Tex. Gen. Laws 4223, 4231; Act of June 16, 1995, 74th Leg.,
R.S., ch. 980, § 2.01, 1995 Tex. Gen Laws 4912, 4927. Because the SAA was not a part of the Labor Code in 1989,
we refer to the relevant section numbers considered in Fernandez. Fernandez, 28 S.W .3d at 4.

        5
            Now T EX . L AB . C OD E A N N . § 501.002(b).

        6
           In construing Section 15(c) of the 1989 version of the SAA, which provided that neither the SAA nor the
W orkers’ Compensation Act authorized actions or damages against governmental entities except to the extent
allowed under the Tort Claims Act, the Court determined that while Section 15(c) itself did not constitute a clear
expression of waiver, it did limit damages for Anti-Retaliation Law violations to those permitted under the Tort
Claims Act. T EX . C IV . P RAC . & R EM . C O D E A N N . § 101.023-.024; Fernandez, 28 S.W .3d at 10.
“employers” while referencing the Anti-Retaliation Law. Fernandez, 28 S.W.3d at 7-8, 9. Having

drawn its conclusions, the Court further explained that the reasonable explanation for the

Legislature’s use of the term “employer” instead of “person” in Section 15(b) was that “employer”

served the purpose of differentiating general workers’ compensation claims from those brought

under the Anti-Retaliation Law. Fernandez, 28 S.W.3d at 8-9. Because Section15(b) has no

meaning absent a waiver, the Court concluded that the Legislature intended to waive sovereign

immunity for state agencies that violate the Anti-Retaliation Law. Fernandez, 28 S.W.3d at 6, 9.

       There has been no relevant amendment to the SAA on the issue of waiver since the Texas

Supreme Court decided Fernandez. The current SAA provisions differ little, if at all, from the 1989

provisions considered in Fernandez, and both versions contain the same relevant language.

Compare Act of Dec. 13, 1989, 71st Leg.2d C.S., ch. 1, § 15.44, sec. 15, 1989 Tex. Gen. Laws 1,

111-12 (formerly codified as TEX . REV . CIV . STAT . art. 8309g, § 15) and Act of May 12, 1993, 73rd

Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1236-40 (amended 1993); see Fernandez, 28

S.W.3d at 4 n.3. The SAA expressly adopts both the Workers’ Compensation Act and the Anti-

Retaliation Law, except to the extent that they are inconsistent with the SAA. Id; TEX . LAB. CODE

ANN . § 501.002(a) (West 2006). Presently, the SAA provides:

       § 501.002(b)

       For the purposes of [Chapter 501 (workers’ compensation coverage for state
       employees)] and Chapter 451[the Anti-Retaliation Law], the individual state agency
       shall be considered the employer.

       § 501.002(c)

       For the purpose of applying the [Anti-Retaliation Law listed in § 501.002(a)] to this
       chapter, . . . “employer” means “state,” “office,” “director,” or “state agency” as
       applicable.

TEX . LAB. CODE ANN . § 501.002(b), (c) (West 2006). The SAA specifies that neither it nor the
Texas Workers’ Compensation Act authorizes a cause of action or damages against the state, a state

agency, or an employee of the state beyond the actions and damages authorized under the Texas Tort

Claims Act. TEX . LAB. CODE ANN . § 501.002(d) (West 2006); TEX . CIV . PRAC. & REM . CODE ANN .

Ch. 101, § 101.002 (West 2011) (The Texas Tort Claims Act) (emphasis added).

       Section 311.034 states that the use of the term “person” does not indicate legislative intent

to waive sovereign immunity unless the context of the statute indicates no other reasonable

construction. TEX . GOV ’T CODE ANN . § 311.034 (West 2005) (emphasis added). Although Section

451.001(1) of the Anti-Retaliation Law states that a “person” may not discharge or discriminate

against an employee who in good faith files a worker’s compensation claim, the SAA continues to

clearly and specifically provide that “[f]or the purposes of [the SAA and Anti-Retaliation Law], the

individual state agency shall be considered the employer,” and that “[f]or the purpose of applying

the [Anti Retaliation Law and other statutes to the SAA], . . . ‘employer’” refers to, among others,

a “state agency.” TEX . LAB. CODE ANN . § 501.002(b), (c) (West 2006). As the Texas Supreme

Court reasoned in Fernandez, Section 501.002(b) has no meaning absent a waiver. Fernandez, 28

S.W.3d at 6. Indeed, by enactment of these provisions in the SAA, the Legislature has effectively

specified that a state agency is among the employers that may be named as a defendant in a claim

for Anti-Retaliation Law violations. We find the SAA clearly and unambiguously expresses the

Legislature’s intent to waive sovereign immunity for Anti-Retaliation Law violations under Section

311.034 and as previously interpreted in Fernandez. Fernandez, 28 S.W.3d at 6.

       In tandem with this finding, we next address the Department’s assertion that its Section

311.034 waiver-of-sovereign-immunity challenge is bolstered by the reasoning of the Texas Supreme

Court in its opinion in Travis Central Appraisal District v. Norman. Travis Cent. Appraisal Dist.

v. Norman, No. 09-0100, 2011 WL 1652133, at *1, *4-5 (Tex. April 29, 2011). In Norman, the
Court recognized that a 2005 amendment which provided that “nothing in this chapter waives

sovereign immunity or creates a new cause of action” rendered the Political Subdivisions Law “too

internally inconsistent” to satisfy the clear and unambiguous standard for a finding of waiver.

Norman, 2011 WL 1652133, at *5. As a result, because the Political Subdivisions Law no longer

clearly and unambiguously waives governmental immunity, the Court dismissed Ms. Norman’s

retaliatory-discharge claim. Id. The Department invites us to apply the reasoning in Norman to the

facts before us, and contends that Norman is indirectly dispositive of the sovereign immunity issue

in this case. For the following reasons, we must decline the Department’s invitation to apply

Norman here.

       First, Norman involves a reading of the Anti-Retaliation Law in conjunction with the

Political Subdivisions Law rather than with the SAA as in Fernandez, and the latter statutes, while

kindred in origin, are not identical. Norman, 2011 WL 1652133, at *5; Fernandez, 28 S.W.3d at 8-

10. Second, unlike the Political Subdivisions Law, the SAA has not been amended “in any way

relevant to the waiver issue” since the Texas Supreme Court issued its opinion in Fernandez. See

Tex. Dep’t of Aging and Disability Svcs. v. Powell, No. 13-10-00126-CV, 2011 WL 2090247, at *3

(Tex. App. – Corpus Christi May 26, 2011, no pet. h.) (mem. op). Simply put, Norman is

inapplicable here. Third, since the 2001 enactment of Section 311.034, the Texas Supreme Court

has not overruled its reasoning in Fernandez. See Taylor, 106 S.W.3d at 697, citing Fernandez, 28

S.W.3d at 8. Under the doctrine of stare decisis, it is not our function to abrogate or modify

established precedent. Lubbock County, Texas v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580,

585 (Tex. 2002). That function lies solely with the Texas Supreme Court. Id.

       Following stare decisis, finding no basis upon which to distinguish this case from the holding

in Fernandez, and finding Norman to be inapplicable here, we conclude that the Legislature has

clearly and unambiguously waived sovereign immunity when a state agency is sued for retaliatory
discharge under the SAA and the Anti-Retaliation Law. Because the Department’s plea to the

jurisdiction was properly denied, the issue is overruled.

                                          CONCLUSION

        The Department’s sole issue is overruled and the trial court’s denial of the Department’s plea

to the jurisdiction is affirmed.



                                               GUADALUPE RIVERA, Justice
August 31, 2011

Before Chew, C.J., Rivera, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment
