David Sims v. the City of Madisonville and the Madisonville Police Department ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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DAVID SIMS, No. 08-15-00113-CV
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Appellant, Appeal from the
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v. 12th District Court
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THE CITY OF MADISONVILLE of Madison County, Texas
AND THE MADISONVILLE POLICE §
DEPARTMENT, (TC# 14-13720-012-10)
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Appellees.
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OPINION
Appellant David Sims filed a Whistleblower Act suit against Appellees, the City of
Madisonville and the Madisonville Police Department (collectively, Madisonville). The trial
court granted Madisonville’s plea to the jurisdiction on the basis of limitations. On appeal, Sims
contends the trial court’s ruling was erroneous because untimeliness under the Whistleblower Act
is not jurisdictional, and the defense of limitations in such a case must be raised in summary
judgment proceedings.1 On original submission, we dismissed the appeal for lack of jurisdiction.
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This case was transferred from our sister court in Waco. TEX. R. APP. P. 41.3. Prior to the completion of
appellate briefing, Madisonville challenged this court’s appellate jurisdiction in a motion to dismiss for want of
jurisdiction. Sims responded, and we denied the motion. Madisonville again challenges this court’s jurisdiction in
its responsive brief. We have determined that we have jurisdiction over the case, and do not address Madisonville’s
subsequent challenge to our jurisdiction. See also TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014(a)(8),
101.001(3)(B) (West Supp. 2017).
We grant Sims’ motion for rehearing, withdraw our opinion and judgment issued on June 8, 2018,
and substitute the following opinion and accompanying judgment in their place.
BACKGROUND
Termination
In his pleadings, Sims alleges the following. Sims was employed as a police officer with
the Madisonville Police Department from November 2004 until July 27, 2012, when his
employment was terminated. Sims was ranked as a corporal. On an unidentified date in July
2012, Sims reported to Madisonville Chief of Police Charles May that he had obtained from a
confidential source information indicating that Sims’ supervising officer, Sergeant Jeff Covington,
and another officer were attempting to recruit individuals to plant narcotics in the vehicle of
Covington’s ex-wife, with whom Covington was in the midst of a contentious custody dispute.
Chief May “immediately dismissed” this information. Thereafter, Sims “came upon” recordings
of Covington and the other officer related to the narcotics-planting scheme. Sims also discovered
that Covington was compiling an investigative file on him, and believed Covington was seeking
Sims’ dismissal in part due to a previous situation when they were both in Iraq. Sims alleges that
the military detachment of which he was a part in Iraq had terminated Covington’s work as a
contractor on the basis of alleged misconduct. Sims repeatedly asked Chief May whether he was
being investigated, and Sims was told that he was not under investigation.
Sims met with Chief May and Sergeant Covington on July 26, 2012. Prior to the meeting,
Sims accessed computer files through his own computer by using a “share program” that allowed
him as an administrator to access any computers in the department. There, Sims found Sergeant
Covington’s investigative notes and GPS and audio/video recordings from Sims’ vehicle, which
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Sims took to the meeting at which he rebutted the allegations contained in Covington’s notes. The
allegations were critical of Sims’ handling of cases and alleged dereliction of his duties, but did
not allege criminal conduct. On that date, Sims was placed on six-months probation for
dereliction of duties.
According to Sims, Chief May was surprised by Sims’ remote access of an interoffice
computer and believed Sims had violated the Department’s computer-use policies. Sims’
employment was terminated the following day, July 27, 2012. An F-5 report indicated Sims’
discharge was deemed “dishonorable.”
An investigation into the alleged violation of the computer use policies was thereafter
initiated, and Chief May requested that the Texas Rangers investigate Sims’ conduct. On August
30, 2012, a grand jury indicted Sims for the offense of computer security breach under Penal Code
Section 33.02, but the criminal charge was later dismissed by the district attorney. TEX. PENAL
CODE ANN. § 33.02 (West 2016).
Sims appealed his “dishonorable” discharge designation through the State Office of
Administrative Hearings (SOAH). During the April 17, 2014 hearing, Sims asserted that his
remote computer access had been permitted. Another former police officer testified and
explained that he had similarly accessed documents as an employee, and was not aware of any
policies forbidding such access. Chief May also testified, and according to Sims, for the first time
admitted that he had authorized an internal investigation of Sims. The SOAH hearing examiner
ruled in favor of Sims, finding that the elements for classifying Sims’ discharge as dishonorable
or general had not been met, and concluded that Sims’ discharge was to be classified as honorable.
Suit and Plea to the Jurisdiction
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Sims asserts that on hearing Chief May’s SOAH testimony in 2014, he first realized, thus
first discovered, that his employment had been terminated in retaliation for his reports of
Covington’s alleged illegal activities. Sims thereafter filed suit under the Texas Whistleblower’s
Act on July 16, 2014, 90 days after the April 17, 2014, SOAH hearing.
After filing its answer, Madisonville filed a plea to the jurisdiction on September 8, 2014,
asserting that the trial court lacked jurisdiction and that Sims’ case should be dismissed as
untimely. Madisonville noted that it was permitted to challenge the trial court’s jurisdiction on
the basis that Sims’ claims did not establish a waiver of immunity because his allegations and the
evidence fail to establish a cause of action under the Act, and further asserted, “While the City
contends that [Sims] cannot establish the basic elements of a Texas Whistleblower claim, this
Court need not even reach those elements as [Sims’] claim here is untimely and barred by
limitations.” Madisonville did not seek a disposition of its plea to the jurisdiction based on
challenges to the jurisdictional facts of Sims’ claims. Instead, in the following four paragraphs of
its plea, Madisonville instead relies in part on Section 311.034 of the Government Code, to argue
that the statutory prerequisites to suit are jurisdictional requirements in all suits against a
governmental entity and that the timely filing of a lawsuit is a statutory, jurisdictional pre-requisite
to suit against a governmental entity. Arguing that Sims was aware that he was under
investigation in 2012, and could not be heard to argue that the testimony he heard at the 2014
SOAH hearing had any bearing on limitations, Madisonville asserted that Sims’ two-year delay in
filing his suit rendered it “very untimely,” and deprived the trial court of jurisdiction. In addition
to other relief, Madisonville prayed that the trial court grant its plea and dismiss Sims’ case with
prejudice. At the October 2014 hearing on the plea, Madisonville again asserted only limitations
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defenses regarding the commencement of the 90-day filing requirement and jurisdiction.
In his response to Madisonville’s plea to the jurisdiction, and at the plea to the jurisdiction
hearing, Sims informed the trial court that unlike other statutory provisions such as the Texas
Commission on Human Rights Act (TCHRA), Texas courts had determined that timeliness is not
jurisdictional under the Whistleblower Act. The trial court took the matter under advisement and
later granted the plea to the jurisdiction, finding that it lacked jurisdiction over the asserted claims
“for the reasons stated in the plea.”
DISCUSSION
The Texas Whistleblower Act
The Whistleblower Act waives sovereign immunity to the extent of liability for the relief
allowed for violations of Chapter 554 of the Government Code. TEX. GOV’T CODE ANN. §
554.0035 (West 2012). Section 554.002 embodies the standard for a violation, and provides that
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); Crosstex Energy
Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 393 n.3 (Tex. 2014). Hence, a violation “occurs
when a governmental entity retaliates against a public employee for making a good-faith report of
a violation of law to an appropriate law enforcement authority.” TEX. GOV’T CODE ANN. §
554.002(b) (West 2012); State v. Lueck, 290 S.W.3d 876, 878 (Tex. 2009). The Whistleblower
Act defines “law” as a state or federal statute, an ordinance of a local governmental entity, or “a
rule adopted under a statute or ordinance.” TEX. GOV’T CODE ANN. § 554.001(1) (West 2012).
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A public employee who alleges a violation of the Whistleblower Act may sue the
employing state or local governmental entity for relief. TEX. GOV’T CODE ANN. § 554.0035 (West
2012); Lueck, 290 S.W.3d at 878. Except to the extent that an employee must initiate grievance
or appeal procedures which may toll the time for filing suit as provided in Section 554.006, a
public employee who seeks relief under Chapter 554 must sue not later than the 90th day after the
date on which the alleged violation occurred or was discovered by the employee through
reasonable diligence. TEX. GOV’T CODE ANN. §§ 554.005-.006 (West 2012).
Standard of Review
A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland
Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review de novo a trial
court’s ruling regarding subject matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004); see also Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 443–44 (Tex. 1993) (providing that subject matter jurisdiction is never presumed and cannot
be waived).
Analysis
In his sole issue on appeal, Sims contends the trial court erred in granting Madisonville’s
plea to the jurisdiction because Madisonville did not challenge the trial court’s jurisdiction on the
basis of jurisdictional facts but rather on the basis of the alleged untimely filing of Sims’
Whistleblower suit. He asserts that non-compliance with the Whistleblower Act’s limitations
provisions is not jurisdictional, and that an affirmative defense of limitations cannot be raised in a
plea to the jurisdiction but must be proven in summary judgment proceedings. We agree.
In Lueck, 290 S.W.3d at 881-82, the Texas Supreme Court held that the facts necessary to
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allege a violation under Section 554.002 were jurisdictional because they were indispensable to
the jurisdictional question of the waiver of sovereign immunity in Section 554.0035. See also
Crosstex Energy Services, L.P., 430 S.W.3d at 393 n.3. However, that is not the contention raised
or presented to the trial court by Madisonville in its plea to the jurisdiction or in its arguments in
support thereof. Simply stated, Madisonville’s plea to the jurisdiction does not challenge the
specific jurisdictional facts of Sims’ case regarding waiver of sovereign immunity. Rather,
Madisonville argued to the trial court that it was without jurisdiction to hear Sims’ Whistleblower
suit because it was non-compliant with the limitations provisions of the Act, and thus was untimely
filed. It argued that timeliness could be raised as a jurisdictional bar in a plea to the jurisdiction,
but acknowledged that it could also be presented in motion for summary judgment. Madisonville
also asserted that Sims did not have to be fully educated regarding his potential claim to trigger
the 90-day limitations period for filing suit.
In support of its contention that timeliness of Sims’ suit is jurisdictional, Madisonville
relies in part on Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 514-15 (Tex. 2012), and
other non-Whistleblower Act cases. In Prairie View A&M Univ., the Texas Supreme Court
considered whether an employee’s pay discrimination complaint was untimely. Id. at 509. The
Court determined that the employee was required to file a complaint under the TCHRA within 180
days of the date the employee is informed of the alleged discriminatory pay decision. Id. at 510.
The Court then considered whether the untimely filing of suit was a jurisdictional bar to suit, and
observed that by its enactment of Section 311.034, the Texas Legislature had mandated that all
statutory prerequisites to suit against governmental entities are jurisdictional. TEX. GOV’T CODE
ANN. § 311.034 (West 2013); Prairie View A&M Univ., 381 S.W.3d at 510-11. The Court
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ultimately concluded that the University’s plea to the jurisdiction should have been granted.
Prairie View A&M Univ., 381 S.W.3d at 510. However, in Lueck the Supreme Court explained
that “the elements of section 554.002(a) [of the Whistleblower Act] are not statutory prerequisites
to suit, but rather, elements of a statutory cause of action in a suit against a governmental entity.”
Lueck, 290 S.W.3d at 883 (emphasis added).
The statute of limitations may be raised as an affirmative defense. TEX. R. CIV. P. 94.
However, our sister courts have repeatedly concluded that an affirmative defense of limitations
under the Whistleblower Act cannot be raised in a plea to the jurisdiction but must be raised and
proved in summary judgment proceedings. Moore v. Univ. of Houston–Clear Lake, 165 S.W.3d
97, 100 (Tex.App.--Houston [14th Dist.] 2005, no pet.) (assertion of limitations under the
Whistleblower Act is affirmative defense which cannot be raised in plea to jurisdiction)
(citing Univ. of Houston v. Elthon, 9 S.W.3d 351, 356–57 (Tex.App.--Houston [14th Dist.] 1999,
pet. dism’d w.o.j.) (in Whistleblower case, proper method for asserting limitations defense is in
motion for summary judgment), disapproved on other grounds, Miranda, 133 S.W.3d at 224));
City of New Braunfels v. Allen, 132 S.W.3d 157, 161-63 (Tex.App.--Austin 2004, no pet.)
(recognizing that noncompliance with limitations provisions of the Whistleblower Act gives rise
to affirmative defense of limitations but is not jurisdictional and does not constitute grounds for
plea to jurisdiction); Tex. Dep’t of Mental Health & Mental Retardation v. Olofsson, 59 S.W.3d
831, 833 (Tex.App.--Austin 2001, pet. dism’d) (same); Castleberry Indep. Sch. Dist. v. Doe, 35
S.W.3d 777, 782 (Tex.App.--Fort Worth 2001, pet. dism’d w.o.j) (limitations defense under
Whistleblower Act is properly raised through summary judgment motion, not plea to jurisdiction).
Our conclusion is the same.
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Because the trial court erred in granting Madisonville’s plea to the jurisdiction based on
the affirmative defense of limitations, we sustain Sims’ sole issue on appeal.
CONCLUSION
The judgment of the trial court is reversed, and the case is remanded for further
proceedings. TEX. R. APP. P. 43.2(d).
ANN CRAWFORD McCLURE, Chief Justice
September 28, 2018
Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating
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