Texas Court of Appeals Reverses Dismissal on Plea to Jurisdiction in Former Policeman’s Whistleblower Suit

By Key Harrington Barnes, PC

October 17, 2018

Not every Dallas employment litigation case arises from allegations of age or race discrimination or accusations of sexual harassment. Sometimes, litigation arises as a result of an alleged violation of another law, such as the Texas Whistleblower Act (codified at Tex. Gov’t Code §§ 554.001 et seq.).

Under the Texas Whistleblower Act, a state or local governmental entity may not take adverse personnel action against a public employee who, in good faith, reports wrongdoing by another employee or a governmental entity. If an employee can prove that such an adverse action has been taken against him or her in retaliation for “blowing the whistle,” he or she may be entitled to injunctive relief, money damages, and/or attorney fees.

Facts of the Case

In a case recently ruled upon by the Court of Appeals for the Eighth District of Texas, the plaintiff was a former police officer. He filed suit against the defendants, a city and its police department, seeking a remedy under the Texas Whistleblower Act. According to the plaintiff, he was terminated after some seven years of service because he reported that his supervising officer was attempting to have narcotics planted in his ex-wife’s vehicle (the supervisor and his wife were engaged in a custody dispute at the time). The plaintiff made the report sometime in July 2012 and was dishonorably discharged later that month on other grounds.

The plaintiff appealed the “dishonorable” designation, and the State Office of Administrative Hearings (SOAH) found in the plaintiff’s favor in April 2014. According to the plaintiff, it was during this hearing that he first learned that his termination had been in retaliation for his report against his supervisor.

Ninety days after the SOAH hearing, the plaintiff filed his Whistleblower suit against the defendants. The defendants filed a plea to the jurisdiction of the trial court, asserting that the plaintiff’s suit was untimely and that the trial court lacked jurisdiction. The trial court agreed and dismissed the plaintiff’s case. He appealed.

The Appellate Court’s Decision

The court of appeals reversed the lower tribunal’s dismissal of the case and remanded the matter for further proceedings. The trial court had granted the defendants’ plea to the jurisdiction of the trial court solely on the affirmative defense of limitations. The appellate court ruled that this was erroneous because, while the statute of limitations can be raised as an affirmative defense, under Texas law an affirmative defense of limitations under the Act cannot be raised as a plea to jurisdiction. Rather, this issue is appropriately raised in summary judgment proceedings rather than in a plea to jurisdiction.

In so holding, the court of appeals quoted prior case law to the effect that the certain sections of the Act “are not statutory prerequisites to suit, but rather, elements of a statutory cause of action against a governmental entity.” Thus, summary judgment, rather than a plea to jurisdiction, is a defendant’s proper vehicle in seeking dismissal of an alleged whistleblower’s suit as untimely.

Experienced Dallas Retaliatory Discharge Defense Attorneys

If your business is facing a whistleblower lawsuit or other employment law claim, the experienced Dallas employment litigation attorneys at Key Harrington Barnes are here to help. Call us at 214-615-7925 today to schedule an appointment to get started on defending the allegations against you.

Tweets Follow

Jul 18

Oregon legislature recently passed a generous paid Family and Medical leave law that will impact almost every Orego…

Jul 17

New York: CROWN Act Effective Immediately

Jul 17

@USDOL Issues New Opinion Letters: Part Three – Rounding Hours