Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 14-CV-1289
consists of Justices Wise, Zimmerer, and Spain.
interlocutory appeal Galveston County, Texas ("the
County") appeals the trial court's denial of its
plea to the jurisdiction and motion for summary judgment. In
two issues the County challenges the trial court's
subject-matter jurisdiction over appellee Bonnie
Quiroga's actions under the Texas Whistleblower Act and
the Uniform Declaratory Judgments Act. Concluding that the
trial court does not have jurisdiction over Quiroga's
claims under the Uniform Declaratory Judgments Act and one of
her claims under the Whistleblower Act, we vacate the trial
court's order denying the County's plea to the
jurisdiction and dismiss those claims. We affirm the trial
court's denial of the County's plea to the
jurisdiction and motion for summary judgment on Quiroga's
whistleblower claim as it pertains to alleged recordings in
the Galveston County Jail.
and Procedural Background
to Quiroga's first amended petition, she was employed by
the County for approximately thirty years before her
discharge on July 24, 2014. In 2000, the County district
court judges recommended Quiroga for the position of Director
of Justice Administration, a position created in 1998. The
Galveston County Commissioners Court appointed Quiroga to the
position. As Director of Justice Administration Quiroga
performed functions related to the trial judges for the
District and County Courts of the County. Quiroga was
appointed to her position by one or more of the trial judges,
and the appointment was confirmed, and salaries appropriated,
by the County Commissioners Court. On July 24, 2014, County
Judge Mark A. Henry terminated Quiroga's employment.
filed suit against the County alleging (1) the County Judge
and County Commissioners Court were not authorized to
terminate Quiroga; (2) Quiroga's termination was a result
of retaliation in violation of the Texas Whistleblower Act;
and (3) the County Commissioners Court violated the Texas
Open Meetings Act. Quiroga couched her allegations against
the County Commissioners as requests for declaratory relief.
In requesting relief, however, Quiroga sought back wages, a
certificate of county life insurance, pre- and post-judgment
interest, and attorneys' fees.
County filed a plea to the jurisdiction in which it alleged
the trial court lacked subject-matter jurisdiction because
(1) Quiroga's requests for declaratory relief could not
survive as a matter of law; and (2) Quiroga had not pleaded
sufficient elements of a Texas Whistleblower Act claim.
Attached to the County's plea to the jurisdiction were
portions of Quiroga's pretrial deposition. In her
deposition Quiroga stated that her Whistleblower Act claims
were limited to two reports of allegedly illegal activities
Quiroga made within 90 days of the date she was terminated.
Quiroga reported to the Galveston County District Attorney
that allegedly unlawful listening devices had been installed
in the County Jail, and reported the unlawful use of official
information to County Judge Mark Henry in his capacity as a
member of the purchasing board. Quiroga confirmed in her
deposition that she was not seeking reinstatement of
County sought dismissal of Quiroga's claims on sovereign
immunity grounds alleging that Quiroga's claims did not
waive the County's immunity from suit. After a
non-evidentiary hearing, the trial court denied the
County's plea to the jurisdiction and motion for summary
judgment. The County filed this interlocutory appeal of the
trial court's denial of its plea to the jurisdiction
pursuant to section 51.014(a)(8) of the Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(8).
issues the County contends the trial court lacked
subject-matter jurisdiction over Quiroga's (1)
Whistleblower Act claims; and (2) Uniform Declaratory
Judgments Act claims.
Standard of Review
a trial court has subject-matter jurisdiction is a matter of
law that is reviewed de novo. Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226, 228
(Tex. 2004). A party may challenge the trial court's
subject-matter jurisdiction by filing a plea to the
jurisdiction. Id. at 225-26. When the plea
challenges the claimant's pleadings, we determine whether
the claimant has pleaded facts that affirmatively demonstrate
the trial court's jurisdiction, construing the pleadings
liberally and in favor of the claimant. Id. at 226.
When the plea challenges the existence of jurisdictional
facts, we consider evidence submitted by the parties just as
the trial court did. Miranda, 133 S.W.3d at 227. We
take as true all evidence favorable to the claimant, and we
indulge all reasonable inferences in her favor. Id.
at 228. In performing this review, an appellate court does
not look to the merits of the case but considers only the
pleadings and evidence relevant to the jurisdictional
inquiry. See id. at 227; Cnty. of Cameron v.
Brown, 80 S.W.3d 549, 555 (Tex. 2002).
political subdivision of the state, the County is immune from
suit absent an express legislative waiver of immunity.
State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).
Immunity from suit focuses on whether the state has expressly
consented to suit; when immunity exists, it deprives a trial
court of subject-matter jurisdiction. Reata Constr. Corp.
v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006);
College of the Mainland v. Meneke, 420 S.W.3d 865,
869 (Tex. App.-Houston [14th Dist.] 2014, no pet.).
County uses the terms sovereign immunity and governmental
immunity in its pleadings. However, they involve two distinct
concepts. Sovereign immunity refers to the State's
immunity from suit and liability. Fed. Sign v. Tex. S.
Univ., 951 S.W.2d 401, 405 (Tex. 1997). In addition to
protecting the State from liability, it also protects the
various divisions of state government, including agencies,
boards, hospitals, and universities. Lowe v. Tex. Tech
Univ., 540 S.W.2d 297, 298 (Tex. 1976). Governmental
immunity, on the other hand, protects political subdivisions
of the State, including counties, cities, and school
districts. City of LaPorte v. Barfield, 898 S.W.2d
288, 291 (Tex. 1995).
as political subdivisions of the State, have governmental
immunity from suits for damages unless the immunity has been
waived. City of Houston v. Houston Mun. Employees Pension
Sys., 549 S.W.3d 566, 576 (Tex. 2018). Immunity
"shield[s] the public from the costs and consequences of
improvident actions of their governments." Tooke v.
City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); see
also City of El Paso v. Heinrich, 284 S.W.3d 366, 371
(Tex. 2009) ("[S]uits for contract damages against the
state are generally barred by immunity[.]"). Private
parties cannot circumvent sovereign immunity from suit by
characterizing a suit for money damages as a
declaratory-judgment claim. Texas Nat. Res. Conservation
Com'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002).
first issue on appeal the County contends that Quiroga's
Whistleblower Act claims are foreclosed by governmental
immunity and that the trial court erred in denying the
County's plea to the jurisdiction and motion for summary
Elements of a Whistleblower Claim
Texas Whistleblower Act is designed to enhance openness in
government and to compel the government's compliance with
law by protecting those who inform authorities of wrongdoing.
City of Houston v. Levingston, 221 S.W.3d 204, 218
(Tex. App.-Houston [1st Dist.] 2006, no pet.). Under the
Whistleblower Act, "A state or local governmental entity
may not suspend or terminate the employment of . . . 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).
invoked the Texas Whistleblower Act as the express
legislative waiver of immunity from suit that allowed her to
sue the County on her two whistleblower claims. See
Tex. Gov't Code Ann. § 554.0035. Under this statute,
"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."
Id. "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.
In Quiroga's pleading she alleged two reports that she
contends met the elements of Whistleblower Act claims thus
waiving the County's immunity. In the first report
On the day prior to the purported July 24, firing, Plaintiff
reported to District Attorney Jack Roady the fact that County
Judge Mark A. Henry had caused confidential spaces (i.e.,
those used by defense counsel and inmates) to be
'bugged' by the installation of recording devices.
Such action violated the rights of inmates to due process of
law under the United States and State Constitutions, as well
as the inmates' right to the assistance of counsel under
United States Constitution, Amd. VI, and Texas Constitution,