The doctrine of sovereign or, as applied to political subdivisions of the state, governmental, immunity developed through the common law. The judiciary “has historically been, and is now, entrusted with ‘defin[ing] the boundaries of the common-law doctrine and . . . determin[ing] under what circumstances sovereign immunity exists in the first instance.’” Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 432 (Tex. 2016) (quoting Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006)). But courts have deferred to the Legislature regarding waiver of immunity because “the Legislature is better suited to balance the conflicting policy issues associated with waiving immunity.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695–96 (Tex. 2003)Interestingly, in 2006, Justice Johnson opposed Justice Hecht’s blanket expansion of sovereign immunity in Tooke v. City of Mexia, which re-interpreted statutory “may sue and be sued” language as not permitting suit and repudiated prior precedent.
NEIGHBORHOOD CENTERS INC. v. DOREATHA WALKER; from Harris County; 1st Court of Appeals District (01-14-00844-CV, 499 SW3d 16, 05-24-16)
JOHNSON CONCURRENCE
IN NEIGHBORHOOD CENTERS
IN NEIGHBORHOOD CENTERS
IN THE SUPREME COURT OF TEXAS
NO. 16-0897
NEIGHBORHOOD CENTERS INC., PETITIONER,
v.
DOREATHA WALKER, RESPONDENT
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
Argued November 7, 2017
The Court says that the question in this case is “whether the [Whistleblower Act] applies to
an open-enrollment charter school operated by a tax-exempt entity.” Ante at __. It ultimately
concludes that the Act, which applies only to state and local governmental entities, does not apply
to open-enrollment charter schools because (1) the Whistleblower Act does not say it does, and (2) it
is not listed in the Charter Schools Act. Ante at __. I agree.
However, the Court’s opinion contains language regarding immunity that I consider
unnecessary to its analysis and which might be taken by some as endorsing or assuming the validity
of legislation that, at first blush, seems to conflict with our prior cases and with the Texas
Constitution. The Court states that “under a statute specifically applicable to charter schools,
including those listed in the [Charter Schools Act], an open-enrollment charter school is immune
from liability and suit as a school district.” Ante at __. The Court bases this statement on Education
Code section 12.1056(a) which provides that “[i]n matters related to operation of an open-enrollment
charter school, an open-enrollment charter school or charter holder is immune from liability and suit
to the same extent as a school district.” TEX. EDUC. CODE § 12.1056(a).
Whether, under the Texas Constitution, the Legislature has authority to grant immunity is
not a question presented in this case. It is an important question, and one the Court has addressed
before. The doctrine of sovereign or, as applied to political subdivisions of the state,
governmental, immunity developed through the common law. The judiciary “has historically been,
and is now, entrusted with ‘defin[ing] the boundaries of the common-law doctrine and . . .
determin[ing] under what circumstances sovereign immunity exists in the first instance.’” Wasson
Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 432 (Tex. 2016) (quoting Reata Const. Corp.
v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006)). But courts have deferred to the Legislature
regarding waiver of immunity because “the Legislature is better suited to balance the conflicting
policy issues associated with waiving immunity.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 695–96 (Tex. 2003).
In LTTS Charter School, Inc. v. C2 Construction, Inc., we considered whether an openenrollment
charter school was a “governmental unit” under the Tort Claims Act and, therefore,
whether the school was entitled to take an interlocutory appeal from the trial court’s denial of its
plea to the jurisdiction. 342 S.W.3d 73, 74–75 (Tex. 2011). The Court did “not resolve the
underlying issue of whether [the school] enjoys immunity” from the contract claim being made
there, and did not otherwise address the Legislature’s enactment regarding charter school immunity.
Id. at 82. The dissenting justice noted that the issue of whether the Legislature could confer
immunity on a private entity was far from clear. Id. at 89 (Guzman, J., dissenting) (“[T]he precise
contours of the Legislature’s power to grant immunity by statute remain unclear—it is no doubt
limited by the Open Courts and Due Course of Law provisions of our Constitution.”).
That the question is not presented or decided in this case is manifested by the Court’s brief
reference to the statutory language and the lack of the type of discussion and analysis warranted
regarding an issue of such constitutional magnitude. I do not read the Court’s opinion in this case
to endorse the concept that under the Texas Constitution the Legislature is authorized to grant
sovereign or governmental immunity, or that it has done so in section 12.1056(a). That question,
if it were to be presented, is one of constitutional dimension, warranting full and transparent
briefing, analysis and discussion—especially in light of our prior statements and decisions. See, e.g.,
Univ. of the Incarnate Word v. Redus, 518 S.W.3d 905, 911 (Tex. 2017); Wasson Interests, Ltd., 489
S.W.3d at 432; Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015); Reata
Const. Corp., 197 S.W.3d at 375.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: April 13, 2018
EXCERPT FROM THE COURT OF APPEALS OPINION BELOW
(SECTION SUSTAINING TRIAL COURT'S DENIAL OF MOTION TO DISMISS AS TO THE PLAINTIFF'S WHISTLEBLOWER CLAIM)
NEIGHBORHOOD CENTERS INC., Appellant and Cross-Appellee
v.
Doreatha WALKER, Appellee and Cross-Appellant.
Court of Appeals of Texas, Houston (1st Dist.).
17On Appeal from the 80th District Court, Harris County, Texas, Trial Court Case No. 2014-37034.
Nicole Phillips, Linda P. Wills, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Houston, for Appellant.
Doreatha Walker, Houston, for Appellee.
Panel consists of Justices Keyes, Bland, and Massengale.
18OPINION ON REHEARING
Evelyn V. Keyes, Justice.
Appellant and cross-appellee, Neighborhood Centers Inc. ("Neighborhood Centers"), moved for rehearing, asking that we address the effect of amendments to the Texas Education Code that became effective after oral argument in this case but before we issued our July 30, 2015 opinion. We grant the motion for rehearing, withdraw our previous opinion and judgment, and issue this opinion and judgment in their stead.
Appellee and cross-appellant Doreatha Walker sued her former employer, Neighborhood Centers, for its alleged retaliation against her for filing a workers' compensation claim.[1] She also sued Neighborhood Centers under the Whistleblower Protection Act.[2] Neighborhood Centers filed a plea to the jurisdiction asserting that it had governmental immunity from Walker's claims. The trial court granted the plea as to Walker's workers' compensation anti-retaliation claim, and it denied the plea as to Walker's claim under the Whistleblower Protection Act.
In its sole issue on appeal, Neighborhood Centers argues that the trial court erred in denying its plea to the jurisdiction on Walker's claim under the Whistleblower Protection Act. Walker argues in her sole issue on cross-appeal that the trial court erred in granting Neighborhood Centers' plea to the jurisdiction on her workers' compensation anti-retaliation claim.
We affirm.
[...]
A. Waiver of Immunity from Suit Under the Whistleblower Protection Act and Education Code
Neighborhood Centers argues that newly added section 12.1058(c) must be construed to preclude the treatment of charter schools like public schools for purposes of the Whistleblower Protection Act because that subsection states that a charter school "is not considered to be a political subdivision, local government, or local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school." It argues that the Whistleblower Protection Act does not specifically state that the Act applies to charter schools; therefore, Neighborhood Centers does not fall within the definition of a local governmental entity as defined by the Whistleblower Protection Act. We disagree.
1. Waiver of Immunity Under the Whistleblower Protection Act
The Whistleblower Protection Act, in Government Code section 554.002, prohibits retaliation for reporting a violation of law:
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) (Vernon 2012). In section 554.001, the Whistleblower Protection Act defines "local governmental entity" as used in section 554.002 to mean "a political subdivision of the state, including a: (A) county; (B) municipality; (C) public school district; or (D) special-purpose district or authority." Id. § 554.001(2) (Vernon 2012).
"A public employee whose employment is suspended or terminated or who is subjected to an adverse personnel action in violation of Section 554.002 is entitled to sue for: (1) injunctive relief; (2) actual damages; (3) court costs; and (4) reasonable attorney fees." Id. § 554.003(a) (Vernon 2012). The term "public employee" is defined for this purpose to mean "an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity." Id. § 554.001(4).
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. 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. § 554.0035 (Vernon 2012). We conclude, therefore, that the Whistleblower Protection Act waives the immunity of local government entities, including public school districts, from suits brought by whistleblowers.
2. Waiver of Immunity Under the Education Code
The Education Code, in turn, unequivocally provides that "[a]n open-enrollment charter school is part of the public school system of this state." TEX. EDUC. CODE ANN. § 12.105; C2 Constr., Inc., 342 S.W.3d at 76. The Education Code further provides that "an open-enrollment charter school is subject to federal and state laws and rules governing public schools and to municipal zoning ordinances governing public schools." TEX. EDUC. CODE ANN. § 12.103(a). In addition, regarding immunity, the Education Code, as amended in 2015, now specifically provides, "In matters related to operation of an open-enrollment charter school, an open-enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district...." Act of June 1, 2015, 84th Leg., R.S., ch. 922 (H.B.1171), § 1, eff. June 18, 2015 (codified as TEX. EDUC. CODE § 12.1056(a)).
The Education Code also "subjects open-enrollment charter schools to a host of statutes that govern governmental entities outside the Education Code." C2 Constr., Inc., 342 S.W.3d at 78. The Code provides that open-enrollment charter schools are: (1) "governmental bodies" for purposes of Open Meetings and Public Information Laws; (2) a "local government" under laws relating to local government records; and (3) a "governmental entity," "political subdivision," and "local government" for purposes of public purchasing and contracting laws. See TEX. EDUC. CODE ANN. §§ 12.1051-12.1055; C2 Constr. Inc., 342 S.W.3d at 77; see also TEX. EDUC. CODE ANN. § 12.1054-12.1055 (providing for applicability of law relating to conflicts of interest and nepotism laws to open-enrollment charter schools, their governing bodies, members, and officers).
Newly enacted Education Code sections 12.1058(a) and (b) add to this list of specific provisions for which open-enrollment charter schools may be considered governmental entities. See Act of June 1, 2015, 84th Leg., R.S., ch. 1020 (H.B.1170), § 1, eff. June 19, 2015 (codified as TEX. EDUC. CODE § 12.1058(a)-(b)) (providing that open-enrollment charter schools can be "a local government" for purposes of statutes governing inter-local cooperation contracts and self-insurance funds under Government Code chapters 791 and 2259; "a political subdivision" for purposes of Texas Political Subdivision Employees Uniform Group Benefits Act under Local Government Code chapter 172; "a local governmental entity" for purposes of adjudication of claims arising under written contracts with local governmental entities under Local Government Code chapter 271; and "a political subdivision" under Labor Code chapter 504 governing workers' compensation participation). New section 12.1056(d) also provides that an open-enrollment charter school is a local government entity for purposes of Local Government Code chapter 271. See Act of June 1, 2015, 84th Leg., R.S., ch. 922 (H.B.1171), § 1, eff. June 18, 2015 (codified as TEX. EDUC. CODE § 12.1056(d)). And section 12.1056(b) provides 28*28 that an open-enrollment charter school is a governmental unit as defined in Civil Practice and Remedies Code section 101.001, governing tort claims against governmental entities. Act of June 1, 2015, 84th Leg., R.S., ch. 922 (H.B.1171), § 1, eff. June 18, 2015 (codified as Tex. Educ. Code § 12.1056(b)).
Finally, newly enacted section 12.1058(c) provides a limit to the application of other provisions to open-enrollment charter schools, stating, "Notwithstanding Subsection (a) or (b), an open-enrollment charter school operated by a tax exempt entity as described by Section 12.101(a)(3) is not considered to be a political subdivision, local government, or local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school." Act of June 1, 2015, 84th Leg., R.S., ch. 1020 (H.B.1170), § 1, eff. June 19, 2015 (codified as TEX. EDUC. CODE § 12.1058(c)).
The newly enacted amendments in sections 12.1056(b) and 12.1058(a) and (b) add to the provisions in law for which charter schools are to be considered public entities, and section 12.1058(c) limits the courts' extension of the purposes for which charter schools are considered to be local government entities, but they do not affect or in any way alter the express immunity provision, set out in section 12.1056(a) of the Code, enacted at the same time, which provides that "[i]n matters related to operation of an open-enrollment charter school, an open-enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district." TEX. EDUC. CODE ANN. § 12.1056(a). Nor do these amendments affect the clear waiver of immunity for local government entities, expressly including school districts, set out in the Whistleblower Protection Act, which provides that "[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" and that "[s]overeign immunity is waived ... for a violation of this chapter." TEX. GOV'T CODE ANN. § 554.0035; see also §§ 554.001(2), (4), 554.002(a), 554.003(a).
We hold that Neighborhood Centers' immunity from Walker's suit against it under the Whistleblower Protection Act is expressly waived by the Whistleblower Protection Act and the Education Code.
This conclusion is supported by the principles of statutory construction.
B. Application of the Whistleblower Protection Act to an Open-Enrollment Charter School Under the Principles of Statutory Construction
The Texas Code Construction Act provides that, "[i]n enacting a statute, it is presumed that ... (2) the entire statute is intended to be effective [and] (3) a just and reasonable result is intended." TEX. GOV'T CODE ANN. § 311.021(2), (3) (Vernon 2013). The Act further provides that, "[i]n construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; [and] (5) consequences of a particular construction." Id. § 311.023(1) — (5). The primary objective in statutory construction is to give effect to the legislators' intent. State v. Shumake,199 S.W.3d 279, 284 (Tex.2006). We rely upon the plain meaning of the statutory text unless a different meaning is supplied by legislative definition or is apparent from the context or a construction leads to absurd results. City of Rockwall v. 29*29Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).
Texas law holds that before the courts construe amended statutes to make substantive changes to prior statutes or to common law rules, they must look carefully to be sure that was what the Legislature intended. Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 193-94 (Tex.2007). "The Legislature has directed that `[i]n interpreting a statute a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.'" Id. at 194 (quoting Tex. Gov't Code Ann. § 312.005 (Vernon 2013)). Furthermore, "[a]bsent any identifiable reason for a substantive change to have been made in the statutory provision, or any extra-textual indication that one was intended, or any resulting change in industry practice, ... the most reasonable construction of [the statute] is the same as its pre-[textual-change] predecessors." Id. at 195 (construing Texas Labor Code section 417.004).
The Whistleblower Protection Act expressly states that the Act applies to public school districts. See TEX. GOV'T CODE ANN. § 554.002(a) (providing that "[a] state or local governmental entity" may not retaliate against employee who reports violation in good faith to proper authority); id. § 554.001(2) (including "public school district" in definition of "local governmental entity"). And the Education Code expressly provides that "an open-enrollment charter school is subject to federal and state laws and rules governing public schools...." See TEX. EDUC. CODE ANN. § 12.103(a). Furthermore, the Whistleblower Protection Act contains an express waiver of immunity that applies to public schools. See TEX. GOV'T CODE ANN. § 554.0035. And as provided for by the Legislature's recent amendment of Education Code section 12.1056, governing immunity of open-enrollment charter schools, open-enrollment charter schools are immune from liability and suit to the same extent as public schools. See Act of June 1, 2015, 84th Leg., R.S., ch. 922 (H.B.1171), § 1, eff. June 18, 2015 (codified as TEX. EDUC. CODE § 12.1056(a)).
We conclude that the Legislature has clearly expressed its intention that the Whistleblower Protection Act apply to open-enrollment charter schools just as it applies to public schools. See Shumake, 199 S.W.3d at 284 (primary objective in statutory construction is to give effect to legislators' intent); Hughes, 246 S.W.3d at 625-26 (in determining legislative intent, we rely upon plain meaning of statutory text).
The Legislature's addition of section 12.1058(c) to the Education Code does not change this analysis. That section provides only that "an open-enrollment charter school ... is not considered to be a political subdivision, local government, or local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school." TEX. EDUC. CODE ANN. § 12.058(c). The Whistleblower Protection Act specifically states that public schools are local government entities subject to the Act, and Education Code section 12.1056(a) specifically states that open-enrollment charter schools are "immune from liability and suit to the same extent as public schools." See TEX. GOV'T CODE ANN. § 554.001; TEX. EDUC. CODE ANN. § 12.1056(a).
Section 12.1058, as a catch-all provision, does not purport to repeal or alter the general provision found in Education Code section 12.103 providing that charter schools are subject to the same laws as public schools. To read section 12.1058 in such a way would effectively negate section 30*30 12.103, which we will not do. SeeTEX. GOV'T CODE ANN § 311.021(2) ("In enacting a statute, it is presumed that ... the entire statute is intended to effective."). Moreover, such a reading would create an absurd result by requiring that every statute that applies to charter schools through the requirement that they be treated the same as public schools be retrofitted to add the words "charter schools" in addition to stating that the law as applied to a public school applies also to a charter school. See id. § 311.021(3) (in construing statute, "a just and reasonable result is intended"); Hughes, 246 S.W.3d at 625-26 (stating that we rely upon plain meaning of statutory text unless different meaning is supplied by legislative definition or is apparent from context, or construction leads to absurd results).
We turn, therefore, to the courts' construction of the law prior to the enactment of section 12.1058.
In Pegasus School of Liberal Arts & Sciences v. Ball-Lowder, the Dallas Court of Appeals addressed arguments similar to those raised by Neighborhood Centers. That court held that, in spite of the differences in the statutory definitions of "governmental unit" in the Tort Claims Act and "local governmental entity" in the Whistleblower Protection Act, "the Whistleblower Protection Act's definition of `local governmental entity' must be interpreted to include an open-enrollment charter school." Pegasus Sch. of Liberal Arts & Scis. v. Ball-Lowder, No. 05-13-00482-CV, 2013 WL 6063834, at *5 (Tex.App.-Dallas Nov. 18, 2013, pet. denied). The court in Pegasus School held that a private, non-profit entity operating an open-enrollment charter school, such as Neighborhood Centers here, is subject to the Whistleblower Protection Act and to its waiver of immunity from suit under that Act. See id.
Neighborhood Centers argues, however, that we should not rely on the Dallas Court of Appeals' opinion in Pegasus School. It argues that the Pegasus Schoolopinion strays from the established precedent of the supreme court in C2 Construction; that it erroneously applies the broad definition of "governmental unit" to the more narrowly defined term of "local governmental entity"; and that it confuses two distinct issues: "(1) the extent of an open-enrollment charter school's immunity, and (2) the basic applicability of a law and statutory cause of action to open-enrollment charter schools." We disagree for the reasons set out below.
In reaching its conclusion in Pegasus School, the Dallas Court of Appeals began by discussing both the supreme court's opinion in C2 Construction and its own opinion in that case on remand from the Texas Supreme Court. Id. at *3-5.
In C2 Construction, the supreme court's analysis involved the "broad," "catch-all" provision in the Tort Claims Act, found in Civil Practice and Remedies Code section 101.001(3)(D), and it concluded that an open-enrollment charter school is a "governmental unit" as defined in that chapter. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(D); C2 Constr., Inc., 342 S.W.3d at 76.
After the supreme court remanded the case for consideration of the trial court's interlocutory order on the charter school's plea to the jurisdiction, the Dallas court in C2 Construction considered the question of whether the charter school's immunity had been waived by Local Government Code section 271.152, which provides a waiver of immunity for limited breach of contract claims. 358 S.W.3d at 740-42 (opinion on remand). It concluded that an open-enrollment charter school is a "local governmental entity" for purposes of the waiver of immunity in Local Government 31*31 Code section 271.152. Id. at 742. Noting that Education Code section 12.103 specifies that "an open-enrollment charter school is subject to federal and state laws and rules governing public schools," it reasoned that the waiver of immunity from contract claims against public schools must also extend to open-enrollment charter schools. Id. at 741 (citing C2 Constr., Inc., 342 S.W.3d at 78 n. 44). The Texas Legislature has now definitively resolved this issue exactly as the C2 Construction court did, by expressly providing in newly added section 12.1056(b) that an open-enrollment charter school is a governmental unit as defined in Civil Practice and Remedies Code section 101.001, governing tort claims against governmental entities, just as the C2 Construction court held. SeeAct of June 1, 2015, 84th Leg., R.S., ch. 922 (H.B.1171), § 1, eff. June 18, 2015 (codified as TEX. EDUC. CODE § 12.1056(b)).
Against the backdrop of the history of the C2 Construction cases, the Dallas court in Pegasus School turned to the question of whether an open-enrollment charter school is a "local governmental entity" under the Whistleblower Protection Act — the same question we must answer here.
The Pegasus School court stated that the Whistleblower Protection Act and Local Government Code section 271.151(3) contain "almost identical" provisions. 2013 WL 6063834, at *5; compare TEX. GOV'T CODE ANN. § 554.001(2)(c) (Whistleblower Protection Act) (`"Local governmental entity' means a political subdivision of the state, including a ... public school district."), with TEX. LOC. GOV'T CODE ANN. § 271.151(3) (Vernon Supp.2015) ("`Local governmental entity' means a political subdivision of this state ... including a ... public school district."). The court held that "[t]he `attributes and circumstances'" of open-enrollment charter schools relied on in the C2 Construction cases — i.e., that they are part of the public school system, have "responsibility for implementing [the] state's school system of public education, and are subject to state laws and rules governing public schools, among other factors" — are equally relevant and applicable in determining whether an open-enrollment charter school is a "local governmental entity" under the Whistleblower Protection Act. Pegasus School,2013 WL 6063834, at *5 (citing C2 Constr., Inc., 358 S.W.3d at 736-37, 741(opinion on remand)). The Pegasus School court held that the logic of its opinion on remand in C2 Construction likewise compelled its holding that an open-enrollment charter school was a "local governmental entity" under the Whistleblower Protection Act. Id.
The conclusions of the Dallas Court of Appeals in C2 Construction and in Pegasus School are both consistent with the intent of the Legislature as expressed in the Whistleblower Protection Act, the previously existing sections of the Education Code, and the newly enacted sections. The Education Code grants open-enrollment charter schools "status as `part of the public school system of this state'" and "authority to wield `the powers granted to [traditional public] schools,'" including the power "to receive and spend state tax dollars (and in many ways to function as a governmental entity)." C2 Constr. Inc., 342 S.W.3d at 78 (citing Tex. Educ. Code Ann. §§ 12.104-12.106). Moreover, the Education Code expressly provides that "an open-enrollment charter school is subject to federal and state laws and rules governing public schools," and it waives an open-enrollment charter school's immunity from liability and suit "to the same extent as a public school." Id.§§ 12.103(a), (b), 12.1056(a).
32*32 The Whistleblower Protection Act contains a "clear and unambiguous expression of the Legislature's waiver of immunity" that expressly applies to public schools, as required to waive governmental immunity. See Taylor, 106 S.W.3d at 696; see also Tex. Gov't Code Ann. § 554.0035 (providing that public employee "may sue the employing state or local governmental entity" and that "[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed" under Act). Thus, there is no question that the Legislature intended to waive immunity from suit for some claims under the Whistleblower Protection Act. There is only the question of whether the scope of affected governmental entities includes open-enrollment charter schools.
We conclude that the Whistleblower Protection Act applies here and that Neighborhood Centers' immunity from suit and liability is waived to the same extent that the public school district's immunity from suit and liability is waived. Thus, we hold that the Legislature has waived governmental immunity for the Whistleblower Protection Act claim asserted here by Walker against Neighborhood Centers. See Taylor, 106 S.W.3d at 697 (holding that statute waiving immunity need not be model of "perfect clarity" but must do so beyond doubt). Accordingly, the trial court properly denied Neighborhood Centers' plea to the jurisdiction on this issue.
We overrule Neighborhood Centers' sole issue on appeal.
Conclusion
We affirm the order of the trial court.
JUSTICE JOHNSON'S SEPARATE OPINION IN TOOKE V CITY OF MEXIA
197 SW 3d 325 (Tex. 2006)
Justice JOHNSON, concurring in part and dissenting in part.
I agree with the Court that the plain and common meaning of the phrase "plead and be impleaded" does not reflect clear and unambiguous legislative intent to waive governmental immunity from suit, and that it does not reflect such intent in the context of TEX. LOC. GOV'T CODE § 51.075. At ___. I also agree that the meaning of statutory language that an entity may "sue and be sued" depends on its context. At ___. But, I agree with Justice O'Neill that we should not overrule Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812 (Tex.1970). At ___ (O'Neill, J., dissenting).
In Missouri Pacific we considered whether the following language waived immunity from suit:All navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district . . . .
453 S.W.2d at 813 (citation omitted). We acknowledged that there may be other language by which legislative intent to give consent to suit against a governmental entity might be more clearly expressed. Id. Nevertheless, we said that the language we were considering "is quite plain and gives general consent for [the] District to be sued" in the same manner as other defendants. Id. Our analysis was based on the plain language of the statute. We needed go no further, for "[w]hen a statute is clear and unambiguous, courts need not resort to rules of construction or extrinsic aids to construe it, but should give the statute its common meaning. The Legislature's intent is determined from the plain and common meaning of the words used." See St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997) (citations omitted).
As the Court notes in this case, some statutes use "sue and be sued" language, yet specifically provide that governmental immunity is not waived. See TEX. EDUC. CODE § 111.33 (providing that the Board of Regents of the University of Houston may "sue and be sued," but that "[n]othing in this section shall be construed as granting legislative consent for suits against the board . . . ."); see also TEX. HEALTH & SAFETY CODE § 403.006, art. 3, sec. 3.03. Legislative intent to preserve immunity by such plain language is clear. But, clarity of language preserving immunity does not diminish the clarity of language such as we interpreted in Missouri Pacific, which waives immunity.
I would hold, in accordance with Missouri Pacific, that statutory language that a governmental entity may sue and be sued is clear and unambiguous consent for suit and that such language waives governmental immunity from suit unless the statute also contains language retaining immunity or the context otherwise demonstrates legislative intent to modify the plain meaning of the "sue and be sued" language.
I concur in the Court's judgment. I dissent from that part of the Court's opinion overruling Missouri Pacific.
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