Neighborhood Centers Inc. v Walker, No. 16-0897 (Tex. April 13, 2018) (Whistleblower complaint dismissed as jurisdictionally barred because charter school employee not covered even though charter school otherwise treated like a school district) (reversing Houston Court of Appeals, which had affirmed trial court's denial of plea to the jurisdiction as to the claim under the Texas Whistleblower Act while affirming dismissal of workers' compensation anti-retaliation claim).
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
JUSTICE JOHNSON filed a concurring opinion.
JUSTICE BLACKLOCK did not participate in the decision.
NEIGHBORHOOD CENTERS INC., Petitioner,
v.
DOREATHA WALKER, Respondent.
Supreme Court of Texas.
Lorna L. McMillion, for Doreatha Walker, Respondent.
Joseph E. Hoffer, Linda P. Wills, Bryan P. Dahlberg, for Neighborhood Centers, Inc., Petitioner.
On Petition for Review from the Court of Appeals for the First District of Texas.
CHIEF JUSTICE HECHT delivered the opinion of the Court.
JUSTICE JOHNSON filed a concurring opinion.
JUSTICE BLACKLOCK did not participate in the decision.
NATHAN L. HECHT, Chief Justice.
The Texas Whistleblower Act (the "WBA") prohibits what it defines as a "local governmental entity", including a public school district, from retaliating against an employee for reporting a violation of law by the employer.[1] The WBA allows the employee to sue for damages and other relief[2] and waives the employer's immunity "to the extent of liability for the relief allowed".[3] The Texas Charter Schools Act (the "CSA") authorizes the Commissioner of Education to grant eligible entities—usually private, tax-exempt nonprofits—charters to operate open-enrollment schools[4] as "part of the public school system of this state."[5] The question before us is whether the WBA applies to an open-enrollment charter school operated by a tax-exempt entity. The answer ultimately turns on the proper interpretation of Section 12.1058(c) of the CSA, which provides that "an open-enrollment charter school operated by a tax exempt entity . . . is not considered to be a . . . local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school."[6] Because the WBA contains no such specific statement, we hold that it does not apply to open-enrollment charter schools and therefore reverse the judgment of the court of appeals[7] and render judgment for petitioner.
I
Petitioner Neighborhood Centers Inc. is a private, nonprofit corporation that for more than a century has provided charitable services to low-income communities in Houston, including Head Start, workforce career centers, meals and programs for seniors, immigration services, free tax preparation services, and a community credit union.[8]Neighborhood Centers also operates Promise Community School (collectively, the "School"), an open-enrollment charter school that provides tuition-free public education to students on multiple campuses.
The School hired respondent Doreatha Walker as a third grade teacher. She had been on the job about 5 months when she complained to the principal that something in her classroom, perhaps mold, was making her and the children sick. The School refused to move the class to another room. On March 27, Walker requested paperwork to submit a workers' compensation claim alleging that on March 24 she sustained injury as a result of the uncleanliness of the room in which she taught. Walker alleges that the Neighborhood Centers Director of Human Resources instructed her not to file a claim because a "workable solution" would be found. That weekend, Walker emailed her complaint to the Houston Health Department. She also wrote to the Texas Education Agency, asserting that the School had submitted falsified test scores to the Agency before Walker arrived, had not tested special-education students properly, and had not timely prepared individualized education plans for students with disabilities. The following week, the School terminated Walker's employment.[9]
Walker sued the School for violating the WBA by retaliating against her.[10] The trial court denied the School's plea to the jurisdiction asserting immunity from suit, and the School appealed.[11] The court of appeals concluded that the WBA's waiver of immunity for local governmental entities, including public school districts, covers open-enrollment charter schools and also that the CSA waives immunity from suit for WBA violations.[12]The court focused on Section 12.1056(a),[13] which states 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".[14] Neither this waiver nor the WBA's, the court held, was affected by Section 12.1058(c),[15] which provides that "an open-enrollment charter school operated by a tax exempt entity . . . is not considered to be a . . . local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school."[16] Accordingly, the court affirmed the trial court's order.[17]
We granted the School's petition for review.[18] We begin by analyzing the WBA, then turn to the CSA and the recent amendments to it.
II
The Legislature adopted the WBA in 1983[19] amidst a growing sense throughout the country that "mismanagement in the public sector is inherently a matter [of] public concern, and that employees who disclose mismanagement deserve legal protection."[20] So firmly was the Legislature of that view that the bill passed without debate or a dissenting vote in either house.[21] The WBA prohibited a state or local governmental body, as defined in the statute, from suspending, terminating, or discriminating against "a public employee who reports a violation of law to an appropriate law enforcement authority if the employee report is made in good faith."[22] The WBA gave public employees the right to sue for broad remedies: reinstatement, actual damages, back pay and benefits, exemplary damages, costs, and attorney fees.[23] Surprisingly, at least in retrospect, the Director of the Legislative Budget Board reported that "[n]o fiscal implication to the State or units of local government is anticipated."[24]
Six years later, George Green, an architect employed by the Texas Department of Human Services ("DHS"), reported to his superiors what he believed to be a pattern of fraud and corruption among agency procurement officers.[25] Seeing that he was ignored, he took his concerns to the House Budget Oversight Committee for Human Services.[26] DHS then began to scrutinize Green's employment history and found that he had once charged a 13¢ personal long distance call to the agency and that he had once left work for a physical therapy session he could not show he attended.[27] DHS terminated Green,[28] and believing it was for reporting possible illegal activity, he sued under the WBA.[29] The trial court rendered judgment on a verdict for Green, awarding him $3,459,831.87 in actual damages,[30] $10 million in punitive damages, $160,000 in attorney fees, and pre- and post-judgment interest.[31] The court of appeals affirmed.[32]
In its next regular session, the Legislature refused to appropriate the money to pay Green's judgment[33] and instead amended the WBA to eliminate recovery of exemplary damages and cap all actual damages, depending on the size of the employing entity, from $250,000 for an entity with more than 500 employees to $50,000 for an entity with fewer than 101 employees.[34] After the Legislature adjourned, the Governor and Legislative Budget Board agreed that the State would pay Green $13.7 million to settle his claim.[35] There is no record that Green's charges of fraud were ever substantiated.[36]
Green is an example of the consequences of governmental abuse of employees, not of ferreting out government mismanagement to protect the public. Since then, the Legislature has been more cautious in expanding protection for whistleblowers. Instead of broad statutes, it has enacted several provisions carefully drawn to cover specific interests needing protection.[37] This Court has thrice "rejected invitations to create a common-law cause of action for all whistleblowers, noting each time that a general claim would eclipse the Legislature's decision to enact a number of narrowly-tailored whistleblower statutes instead."[38] Whistleblower protections involve interests in tension.
There is ambivalence in the law of whistleblowing that . . . reflects the balancing of competing public policies. Prevention of harm to the public welfare is a powerful argument in favor of legal protection for whistleblowers. However, the duty of loyalty and other competing legal and ethical principles are powerful arguments in favor of limits on what, when, to whom, how, and why whistleblowers may make their disclosures. . . . [T]he legal protection of all forms of whistleblowing might detrimentally affect legitimate interests of the public, employees, and co-workers.[39]
The WBA is not universal in its application. It covers public employees—not independent contractors[40]—of state and local governmental entities. "`Local governmental entity' means a political subdivision of the state, including a: (A) county; (B) municipality; (C) public school district; or (D) special-purpose district or authority."[41] Immunity is waived for any entity against which relief is allowed.[42] In the present case, Walker argues that open-enrollment charter schools fall under (C) and not under any other provision of the WBA. Thus, the question before us is whether an open-enrollment charter school is a public school district to which the WBA applies. For the answer, we turn to the CSA.
III
We begin with an overview of open-enrollment charter schools under the CSA, then recap the judicial interpretations of the provisions as they relate to this case, and finally examine recent amendments to the Act.
A
The Legislature included the CSA in its 1995 overhaul of the Texas Education Code.[43]Its purposes in doing so, it has since stated, have been to "(1) improve student learning; (2) increase the choice of learning opportunities within the public school system; (3) create professional opportunities that will attract new teachers to the public school system; (4) establish a new form of accountability for public schools; and (5) encourage different and innovative learning methods."[44] State oversight of charter schools is to "ensure[] the[ir] fiscal and academic accountability" without "unduly regulat[ing] the[ir] instructional methods or pedagogical innovations".[45]
Open-enrollment charter schools are among those authorized by the CSA.[46] As their name suggests, they are generally open to the public for the instruction offered. They are tuition-free and usually operated by private, tax-exempt nonprofits under contract—the charter—with the Commissioner of Education.[47] Generally, open-enrollment charter schools are "subject to federal and state laws and rules governing public schools",[48]but they are subject to the Education Code and rules adopted under it "only to the extent the applicability to an open-enrollment charter school . . . is specifically provided."[49]This gives them greater flexibility in providing education. They have "the powers granted to schools" by law[50] except the power to tax.[51] They are generally entitled to state funding[52] and services[53] as if they were a school district. Open-enrollment charter schools are "part of the public school system of [the] state."[54] In the 2015-2016 school year, 247,389 students—about 4.7 percent of public school students—were enrolled in an open-enrollment charter school.[55]
As originally enacted, the CSA provided that an open-enrollment charter school has the same immunity from liability as a school district but not the government's immunity from suit.[56] The CSA stated then, and still does, that a school's governing body "is considered a governmental body" for purposes of the Open Meetings Act and the Public Information Act.[57] Since 2001,[58] the CSA has provided that an open-enrollment charter school is considered to be:
• a "local government" for purposes of the Local Government Records Act[59] and certain statutes pertaining to the preservation and management of local government records[60]and to government investments;[61]
• a "governmental entity" for purposes of certain statutes pertaining to government contracts[62] and to competitive bidding on public works contracts;[63] and
• a "political subdivision" for purposes of the Professional Services Procurement Act.[64]
The 2001 amendments also made laws relating to conflicts of interest,[65] nepotism,[66]and employee retirement applicable to open-enrollment charter schools much as if they were governmental entities and public school districts.[67]
B
Despite these statutorily drawn similarities between open-enrollment charter schools and public school districts, the Dallas Court of Appeals concluded in Ohnesorge v. Winfree Academy Charter School that while open-enrollment charter schools are public schools, they simply are not public school districts as defined and constituted by law.[68] Thus, the court held, the WBA's application to public school districts does not extend to open-enrollment charter schools.[69] The court relied on its decision in LTTS Charter School, Inc. v. C2 Construction, Inc. [LTTS I] that an open-enrollment charter school is not a "governmental unit" as defined by the Texas Tort Claims Act and therefore is not entitled to an interlocutory appeal from the denial of a plea to the jurisdiction.[70]
But we disagreed with LTTS I.[71] The Texas Tort Claims Act's definition of "governmental unit" includes "any . . . institution, agency, or organ of government the status and authority of which are derived from . . . laws passed by the legislature".[72]Surveying the provisions of the CSA we have just set out, we concluded:
In sum, numerous provisions of Texas law confer "status" upon and grant "authority" to open-enrollment charter schools. Their status as "part of the public school system of this state"—and their authority to wield "the powers granted to [traditional public] schools" and to receive and spend state tax dollars (and in many ways to function as a governmental entity)—derive wholly from the comprehensive statutory regime described above. With this legislative backdrop in mind, we are confident that the Legislature considers [an open-enrollment charter school] to be an "institution, agency, or organ of government" under the Tort Claims Act and thus entitled to . . . an interlocutory appeal. . . .[73]
We remanded the case to the court of appeals to determine whether LTTS was immune from suit on the breach-of-contract claim C2 Construction asserted under the Local Government Contract Claims Act.[74] That court, while noting that we had expressed no view on the matter, found our reasoning inescapable. The "same attributes and circumstances" of open-enrollment charter schools described in LTTS II, the court of appeals wrote, equally "support a conclusion of governmental immunity."[75] "[B]ased on the supreme court's analysis", the court concluded, "open-enrollment charter schools have governmental immunity from suit."[76] Then coming full circle, the court of appeals concluded in Pegasus School of Liberal Arts & Sciences v. Ball-Lowder that Ohnesorge,which had relied on LTTS I, was also inconsistent with LTTS II, and that open-enrollment charter schools are local governmental entities for purposes of the WBA.[77]
This was the state of the case law when the present case came before the court of appeals in 2015. That court, like its sister court in Pegasus, found LTTS II controlling on the issue whether the WBA applies to open-enrollment charter schools.
C
In 2015, while the appeal in this case was pending in the court of appeals, the Legislature amended CSA Section 12.1056[78] and added Section 12.1058.[79] New Sections 12.1056(b)-(d) and 12.1058(a)-(b) further expand the specific situations, set out above, in which an open-enrollment charter school is considered to be a governmental entity. The amendments made an open-enrollment charter school:
• a "governmental unit" under the Tort Claims Act and subject to the same liability under that Act as a school district;[80]
• a "local government" under statutes regarding payment of tort claims,[81] interlocal cooperation contracts,[82] and self-insurance (except for issuing public securities);[83]
• a "local governmental entity" under the Local Government Contract Claims Act and subject to the same liability as a school district;[84] and
• a "political subdivision" for purposes of the Texas Political Subdivision Employees Uniform Group Benefits Act,[85] and at the school's election, for purposes of extending workers' compensation benefits.[86]
The many instances in which the CSA treats open-enrollment charter schools as governmental entities and school districts might be taken to support either of two inferences. One is that the lists are merely specific affirmations of the broader principle that open-enrollment charter schools are school districts. The other is that the instances, listed specifically by the Legislature over time, are the only ones in which open-enrollment charter schools are governmental entities. The Legislature's addition of Section 12.1058(c) in the 2015 amendments resolves all doubt. That provision states that "[n]otwithstanding Subsection (a) or (b), an open-enrollment charter school operated by a tax exempt entity . . . 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."[87] If Subsections (a) and (b) do not indicate that open-enrollment charter schools are governmental entities and school districts generally, then neither do other CSA provisions. Subsection (c) plainly states that a statute's application to a governmental entity does not extend to an open-enrollment charter school unless the statute specifically says so.
The court of appeals considered the 2015 amendments on rehearing but concluded that they do not alter the analyses and holdings of LTTS II, LTTS III, and Pegasus.[88] Walker adopts the court's reasoning here.
Walker argues that reading Section 12.1058(c) to mean what it says conflicts with Section 12.1056(a), which provides that an open-enrollment charter school "is immune from liability and suit to the same extent as a school district".[89] Walker reads Section 12.1056(a) to make open-enrollment charter schools liable whenever school districts are. Section 12.1056(a), Walker argues, not the WBA, is "the applicable statute" under Section 12.1058(c). But this blanket identification of open-enrollment charter schools with school districts makes unnecessary the CSA's long list of specific instances in which an open-enrollment charter school is treated as a governmental entity or school district. And Walker's reading of Section 12.1056(a) completely nullifies Section 12.1058(c), which states that open-enrollment charter schools are not to be treated as governmental entities or school districts without a specific statement to that effect in the applicable statute. In our view, the two provisions can easily be read to complement each other: an open-enrollment charter school is not to be treated as a governmental entity or school district unless a statute specifically states that it is, but when there is such a statute, the open-enrollment charter school's immunity from liability and suit is the same as a school district's.
Walker further argues that this interpretation of Section 12.1058(c) conflicts with Section 12.103(a), which provides that charter schools are "subject to federal and state laws and rules governing public schools".[90] But again, Walker's reading of Section 12.103(a) is inconsistent with the CSA's structure and nullifies Section 12.1058(c). When Section 12.103(a) is read in context with the CSA's other provisions, it clearly means that charter schools are generally subject to the same laws as public schools, but there are exceptions. The very next sentence, Section 12.103(b), is one: charter schools are not subject to the Education Code and rules promulgated under it unless the statute or a rule specifically says so.[91] Section 12.1058(c) is simply another.
Finally, Walker argues that requiring every statute to specifically state whether it is applicable to charter schools is an absurd result. But the Legislature has already gone a long way in doing just that, specifically making statutes applicable to governmental entities also applicable to open-enrollment charter schools 16 times.
Read together, Sections 12.1056(a) and 12.1058(c) provide that under a statute specifically applicable to charter schools, including those listed in the CSA, an open-enrollment charter school is as immune from liability and suit as a school district. The WBA does not apply specifically to open-enrollment charter schools and is not listed in the CSA. Thus, the WBA does not apply to open-enrollment charter schools. The result in LTTS II remains unchanged because the Texas Tort Claims Act's definition of "governmental unit", which determines the right of interlocutory appeal, is applicable to open-enrollment charter schools under the CSA.[92] The same is true for the result in LTTS III because the Local Government Contract Claims Act is listed in the CSA.[93]Only the court of appeals' decision in Pegasus is inconsistent with our holding today.
* * * * *
Accordingly, the judgment of the court of appeals is reversed and judgment is rendered that Walker take nothing.
Nathan L. Hecht
Chief Justice
Opinion delivered: April 13, 2018
[1] TEX. GOV'T CODE § 554.001(2) ("`Local governmental entity' means a political subdivision of the state, including a: (A) county; (B) municipality; (C) public school district; or (D) special-purpose district or authority."); id.§ 554.002(a) ("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.").
[2] Id. § 554.003(a) ("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(b) ("In addition to relief under Subsection (a), a public employee whose employment is suspended or terminated in violation of this chapter is entitled to: (1) reinstatement to the employee's former position or an equivalent position; (2) compensation for wages lost during the period of suspension or termination; and (3) reinstatement of fringe benefits and seniority rights lost because of the suspension or termination."); id. § 554.003(c) (limiting recovery for "compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses" based on the size of the employer).
[3] Id. § 554.0035 ("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.").
[4] TEX. EDUC. CODE § 12.101(a) ("In accordance with this subchapter, the commissioner may grant a charter on the application of an eligible entity for an open-enrollment charter school to operate in a facility of a commercial or nonprofit entity, an eligible entity, or a school district, including a home-rule school district.").
[5] Id. § 12.105 ("An open-enrollment charter school is part of the public school system of this state."); see also id. § 11.002 ("The school districts and charter schools created in accordance with the laws of this state have the primary responsibility for implementing the state's system of public education and ensuring student performance in accordance with this code.").
[6] Id. § 12.1058(c).
[7] 499 S.W.3d 16 (Tex. App.-Houston [1st Dist.] 2016).
[8] While this appeal has been pending, Neighborhood Centers has changed its name to BakerRipley.
[9] The School offered evidence that Walker has sued her various employers multiple times over many years, always without success.
[10] Walker also sued the School for retaliating against her for filing a workers' compensation claim in violation of Section 451.001 of the Texas Labor Code. The court of appeals held that the School is immune from suit on this retaliation claim, 499 S.W.3d at 25, and Walker has not appealed that ruling to this Court.
[11] See LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 74-75 (Tex. 2011) (holding that an open-enrollment charter school is a "governmental unit" under the Tort Claims Act, Chapter 101 of the Texas Government Code, and therefore authorized by Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code to take an interlocutory appeal from the denial of a plea to the jurisdiction).
[12] 499 S.W.3d at 28.
[13] Id. at 27-29.
[14] TEX.EDUC.CODE § 12.1056(a).
[15] 499 S.W.3d at 28-30.
[16] TEX.EDUC.CODE § 12.1058(c).
[17] 499 S.W.3d at 32.
[18] 60 Tex. Sup. Ct. J. 1659 (Sept. 22, 2017).
[19] Act of May 30, 1983, 68th Leg., R.S., ch. 832, 1983 Tex. Gen. Laws 4751.
[20] DANIEL P. WESTMAN & NANCY M. MODESITT, WHISTLEBLOWING: THE LAW OF RETALIATORY DISCHARGE 67 (Bureau of Nat'l Aff. 2d ed. 2004) ("Beginning in the 1980s and continuing steadily thereafter, 47 states and the District of Columbia have enacted whistleblower statutes that protect state or local government employees."); see also id. at 281-307 (collecting statutes). Federal whistleblower protections were enacted in the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified in scattered sections of 5 U.S.C.), and the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified in scattered sections of 5 U.S.C.).
[21] 1983 Tex. Gen. Laws at 4753.
[22] Id. § 2, 1983 Tex. Gen. Laws at 4752.
[23] Id. §§ 3-4, 1983 Tex. Gen. Laws at 4752.
[24] Letter from Jim Oliver, Dir., Legislative Budget Bd., to Hon. James E. (Pete) Laney, Chair, Comm. on State Affairs, Tex. House of Representatives (Apr. 8, 1983).
[26] Id. at 140, 146.
[27] Id. at 140.
[28] Id. DHS also had Green indicted on felony charges, which the district attorney later dismissed. Id.
[29] Id.
[30] The jury appears to have deducted 13¢ from Green's claim.
[32] Id. at 151.
[33] Christy Hoppe, State Pays Fired Man Millions; Money, Apology End Whistle-Blower's Battle, DALLAS MORNING NEWS, Nov. 16, 1995, at 1A.
[34] Act of May 25, 1995, 74th Leg., R.S., ch.721, § 3, 1995 Tex. Gen. Laws 3812, 3812-3813 (amending TEX. GOV'T CODE § 544.003).
[35] Hoppe, supra note 33.
[36] See id.
[37] See, e.g., TEX. AGRIC. CODE § 125.013(b); TEX. HEALTH & SAFETY CODE §§ 161.134, 260A.014; TEX. HUM. RES. CODE § 48.257; TEX. OCC. CODE §§ 160.002-.004, 160.012, 301.352, 301.412-.413, 505.602-.603.
[38] Ed Rachal Found. v. D'Unger, 207 S.W.3d 330, 331 (Tex. 2006) (per curiam) (citing Austin v. HealthTrust, Inc.-The Hosp. Co., 967 S.W.2d 400, 401-402 (Tex. 1998), and Winters v. Hous. Chron. Publ'g Co., 795 S.W.2d 723, 723 (Tex. 1990)); see also Montgomery Cty. v. Park, 246 S.W.3d 610, 612 n.1 (Tex. 2007) ("Instead of creating a general whistleblower law, the Legislature enacted several employee-specific whistleblower statutes.").
[39] WESTMAN & MODESITT, supra note 20 at 41.
[40] TEX.GOV'T CODE § 554.001(4) ("`Public employee' means an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity.").
[41] Id. § 554.001(2).
[42] Id. § 554.0035.
[43] Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207, 2244-2247 (now codified as TEX. EDUC. CODE ch. 12).
[44] TEX.EDUC.CODE § 12.001(a).
[45] Id. § 12.001(b).
[46] Id. § 12.002(3).
[47] Id. §§ 12.101, 12.112.
[48] Id. § 12.103(a).
[49] Id. § 12.103(b).
[50] Id. § 12.104(a).
[51] Id. § 12.102(4).
[52] Id. § 12.106.
[53] Id. § 12.104(c).
[54] Id. § 12.105.
[55] TEX.EDUC.AGENCY, 2016 COMPREHENSIVE BIENNIAL REPORT ON TEXAS PUBLIC SCHOOLS 221 (Mar. 2017).
[56] Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 12.105(c), 1995 Tex. Gen. Laws 2207, 2245 ("The school is immune from liability to the same extent as a school district, and its employees and volunteers are immune from liability to the same extent as school district employees and volunteers.").
[57] Compare id., sec. 12.105(b), 1995 Tex. Gen. Laws at 2245, with TEX. EDUC. CODE § 12.1051(a) (both citing TEX. GOV'T CODE chs. 551-552).
[58] Act of May 27, 2001, 77th Leg., R.S., ch. 1504, § 6, 2001 Tex. Gen Laws 5344, 5346 (amending the CSA).
[59] TEX.EDUC.CODE § 12.1052(a) (citing TEX. LOC. GOV'T CODE ch. 201).
[60] Id. (citing TEX. GOV'T CODE ch. 441).
[61] Id. § 12.1053(b)(3) (citing TEX. GOV'T CODE §§ 2256.009-.016).
[62] Id. § 12.1053(b)(1)(A) (citing TEX. GOV'T CODE ch. 2252).
[63] Id. § 12.1053(b)(1)(B) (citing TEX. LOC. GOV'T CODE ch. 271).
[64] Id. § 12.1053(b)(2) (citing TEX. GOV'T CODE ch. 2254).
[65] Act of May 27, 2001, 77th Leg., R.S., ch. 1504, § 6, 2001 Tex. Gen Laws 5344, 5346-5347 (enacting TEX. EDUC. CODE § 12.1054).
[66] Id. at 5347 (enacting TEX. EDUC. CODE § 12.1055).
[67] Id. (enacting TEX. EDUC. CODE § 12.1057).
[68] 328 S.W.3d 654, 657 (Tex. App.-Dallas 2010, no pet.).
[69] Id. at 657-658.
[70] Id. at 657 (citing LTTS Charter Sch., Inc. v. C2 Constr., Inc., 288 S.W.3d 31 (Tex. App.-Dallas 2009) [LTTS I], rev'd, 342 S.W.3d 73 (Tex. 2011) [LTTS II], op. on remand, 358 S.W.3d 725 (Tex. App.-Dallas 2011, pet. denied) [LTTS III]).
[72] TEX. CIV. PRAC. & REM. CODE § 101.001(3)(D).
[73] LTTS II, 342 S.W.3d at 78 (first alteration in original).
[74] Id. at 82.
[75] LTTS III, 358 S.W.3d at 735.
[76] Id. at 736.
[77] No. 05-13-00482-CV, 2013 WL 6063834, at *5 (Tex. App.-Dallas Nov. 18, 2013, pet. denied).
[78] Act of May 29, 2015, 84th Leg., R.S., ch. 922, § 1, 2015 Tex. Gen. Laws 3187, 3187.
[79] Act of May 29, 2015, 84th Leg., R.S., ch. 1020, § 1, 2015 Tex. Gen. Laws 3574.
[80] TEX. EDUC. CODE § 12.1056(b) (citing TEX. CIV. PRAC. & REM. CODE ch. 101).
[81] Id. § 12.1056(c) (citing TEX. CIV. PRAC. & REM. CODE ch. 102).
[82] Id. § 12.1058(a)(1) (citing TEX. GOV'T CODE ch. 791).
[83] Id. § 12.1058(a)(2) (citing TEX. GOV'T CODE ch. 2259).
[84] Id. §§ 12.1056(d), 12.1058(a)(4) (both citing TEX. LOCAL GOV'T CODE ch. 271 subch. I).
[85] Id. § 12.1058(a)(3) (citing TEX. LOC. GOV'T CODE ch. 172).
[86] Id. § 12.1058(b) (citing TEX. LABOR CODE ch. 504).
[87] Id. § 12.1058(c).
[88] 499 S.W.3d 16, 29-31 (Tex. App.-Houston [1st Dist.] 2016).
[89] TEX.EDUC.CODE § 12.1056(a).
[90] Id. § 12.103(a).
[91] Id. § 12.103(b).
[92] Id. § 12.1056(b).
[93] Id. §§ 12.1056(d), 12.1058(a)(4).
BELOW: HOUSTON COURT OF APPEALS OPINION DENYING DISMISSAL OF
WHISTLEBLOWER CLAIM BY FORMER CHARTER SCHOOL EMPLOYEE
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.
19
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.
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.
Background
Neighborhood Centers is a private, non-profit corporation that provides services — including Head Start, workforce career centers, meals and programs for seniors, immigration services, tax preparation services, and a community credit union — to low-income communities in Houston. Neighborhood Centers also operates the Promise Community School, an open-enrollment charter school established pursuant to Texas Education Code chapter 12.[3]
Neighborhood Centers hired Walker, who has a master's degree and is certified in mid-management as a school principal, for the 2013-2014 school year to work as a third-grade teacher at the Promise Community School. Walker alleged that while she was employed with Neighborhood Centers she observed health code violations and various testing irregularities, which she described as "cheating irregularities," "[s]pecial education testing irregularities," and untimely provision of Individualized Education Plans. Walker also observed health code violations and eventually filed a workers' compensation claim for health issues that she asserts were caused by the health code violations she observed at the school.
Walker alleged that after she filed her workers' compensation claim Neighborhood Centers forced her to accept a demotion and reassignment as "an Interventionist and a Girl Scout Leader," and Neighborhood Centers' insurer denied her workers' compensation claim. Walker reported her observations regarding the testing violations and health code violations to the Texas Education Agency and the Texas Health Department, respectively. She asserts that once her report of these violations came to light, Neighborhood Centers terminated her employment on a pretext.
Walker filed suit against Neighborhood Centers, alleging that its actions in demoting and subsequently firing her violated Labor Code section 451.001 — which prohibits retaliation against an employee for filing a workers' compensation claim — and 20*20 Government Code section 554.002(a) — a provision of the Whistleblower Protection Act that prohibits a state or local governmental entity from retaliating against an employee who has reported a violation of law to an appropriate law enforcement authority.
Neighborhood Centers filed a plea to the jurisdiction, arguing that its immunity from suit and liability barred Walker's workers' compensation anti-retaliation claim. It argued that open enrollment charter schools, such as the Promise Community School, have the same immunity as a public school district. Relying on the Texas Supreme Court's opinion in Travis Central Appraisal District v. Norman, 342 S.W.3d 54 (Tex.2011), it argued that governmental immunity is not waived for retaliatory discharge claims under Labor Code chapter 451. Neighborhood Centers also argued that it is not a "political subdivision" or "local governmental entity" under the Whistleblower Protection Act, as that act defines "local governmental entity" narrowly. It asserted that all of Walker's claims must be dismissed for lack of subject-matter jurisdiction.
The trial court granted Neighborhood Centers' plea to the jurisdiction as to Walker's workers' compensation anti-retaliation claim, and it denied the plea as to Walker's claim under the Whistleblower Protection Act. Both Neighborhood Centers and Walker filed notices of appeal.
Open-Enrollment Charter Schools
Open-enrollment charter schools, such as Promise Community School operated by Neighborhood Centers, have been a part of the Texas public school system since 1995. LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 74 (Tex.2011). As the supreme court stated,
These nontraditional public schools, created and governed by Chapter 12 of the Education Code, receive government funding and comply with the state's testing and accountability system, but they operate with greater flexibility than traditional public schools, in hopes of spurring innovation and improving student achievement.
Id.; see also TEX. EDUC. CODE ANN. § 12.001 (Vernon 2012) (describing purposes behind charter schools).
The Education Code 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 (Vernon 2012); C2 Constr., Inc., 342 S.W.3d at 76. An open-enrollment charter school is a publicly funded institution. Tex. Educ. Code Ann. § 12.106 (Vernon 2012); C2 Constr., Inc., 342 S.W.3d at 77-78. The Education Code provides generally 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) (Vernon 2012).
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. Specifically, the Code provides that open-enrollment charter schools are also "considered to be governmental bodies for purposes of Chapters 551 and 552, Government Code [providing Open Meetings and Public Information Laws]." TEX. EDUC. CODE ANN. § 12.1051(a) (Vernon 2012). Open-enrollment charter schools are "considered to be a local government for purposes of Subtitle C, Title 6, Local Government Code, and Subchapter J, Chapter 441, Government Code [providing the laws relating to local government records]." Id. § 12.1052(a) (Vernon 2012). And "Section 12.1053 confers `governmental entity' status, `political 21*21 subdivision' status, and `local government' status on open-enrollment charter schools for purposes of myriad public purchasing and contracting laws...." C2 Constr., Inc., 342 S.W.3d at 77(citing TEX. EDUC. CODE ANN. § 12.1053 (Vernon Supp.2014)); see also TEX. EDUC.CODE ANN. §§ 12.1054, 12.1055 (Vernon 2012 & Supp.2015) (providing for applicability of law relating to conflicts of interest and nepotism laws to open-enrollment charter schools, their governing bodies, members, and officers).
Regarding an open-enrollment charter school's immunity from suit and liability, the Legislature amended Education Code section 12.1056, effective June 18, 2015,[4]to provide:
(a) 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....
(b) An open-enrollment charter school is a governmental unit as defined by Section 101.001, Civil Practice and Remedies Code, and is subject to liability only as provided by Chapter 101, Civil Practice and Remedies Code, and only in the manner that liability is provided by that chapter for 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).[5]
The Legislature also added section 12.1058, entitled "Applicability of Other Laws," which provides:
(a) An open-enrollment charter school is considered to be:
(1) a local government for purposes of Chapter 791, Government Code [governing interlocal cooperation contracts];
(2) a local government for purposes of Chapter 2259, Government Code [governing 22*22 self-insurance funds], except that an open-enrollment charter school may not issue public securities as provided by Section 2259.031(b), Government Code;
(3) a political subdivision for purposes of Chapter 172, Local Government Code [also known as the Texas Political Subdivision Employees Uniform Group Benefits Act]; and
(4) a local governmental entity for purposes of Subchapter I, Chapter 271, Local Government Code [governing adjudication of claims arising under written contracts with local governmental entities].
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).
Section 12.1058 also specifies that open-enrollment charter schools may elect to extend workers' compensation benefits to employees through any method available to a political subdivision under Labor Code chapter 504. Id. § 12.1058(b). Section 12.1058(c) then states:
(c) 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.
Id. § 12.1058(c).
Standard of Review for Pleas to the Jurisdiction on Governmental Immunity
A plea to the jurisdiction challenges the trial court's subject-matter jurisdiction to hear the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject-matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Id. at 446; see also Weir Bros., Inc. v. Longview Econ. Dev. Corp., 373 S.W.3d 841, 847 (Tex.App.-Dallas 2012, no pet.) ("[The plaintiff] had the burden to plead facts that affirmatively demonstrate a waiver of governmental immunity and that the court has subject matter jurisdiction.").
We review a trial court's ruling on a plea to the jurisdiction de novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In reviewing the ruling, an appellate court "must determine whether facts have been alleged that affirmatively demonstrate jurisdiction in the trial court." City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex.2008).
When reviewing a trial court's ruling on a jurisdictional plea, "we first look to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of the plaintiffs and looking to the pleader's intent," and "we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised." City of Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex.2009). We do not adjudicate the substance of the case but instead determine whether a court has the power to reach the merits of the claim. Bland Indep. Sch. Dist., 34 S.W.3d at 554; Bd. of Trs. of Galveston Wharves v. O'Rourke, 405 S.W.3d 228, 233 (Tex.App.-Houston [1st Dist.] 2013, no pet.).
If the pleadings affirmatively negate the existence of jurisdiction, the plea may be granted without allowing the plaintiff an opportunity to amend her pleadings. Miranda, 133 S.W.3d at 227. If the relevant evidence is undisputed or 23*23 fails to raise a fact issue as to jurisdiction, the trial court rules on the plea as a matter of law. Id. at 228.
"Under the common-law doctrine of sovereign immunity, the [state] cannot be sued without its consent." City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.2011). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the state, including counties, cities, and school districts. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). Like sovereign immunity, "governmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether." Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006). Governmental immunity from suit deprives a trial court of subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction, while immunity from liability is an affirmative defense. See Miranda, 133 S.W.3d at 224-26. Furthermore, "[i]mmunity from suit bars a suit against the State unless the Legislature expressly consents to the suit." Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002).
"[F]or the Legislature to waive the State's sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature's waiver of immunity." Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003); see also Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012) (recognizing that immunity from suit "remains intact unless surrendered in express and unequivocal terms by the statute's clear and unambiguous waiver"). The supreme court has "repeatedly affirmed that any purported statutory waiver of sovereign immunity should be strictly construed in favor of retention of immunity." Chatha, 381 S.W.3d at 513 (citing Taylor, 106 S.W.3d at 696); see also TEX. GOV'T CODE ANN. § 311.034 (Vernon 2013) ("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.").
Interlocutory Appeal
As a preliminary matter, Walker argues that Neighborhood Centers is a private, non-profit corporation that does not enjoy governmental immunity from suit. She contends that, for that reason, "the Court should dismiss Neighborhood Centers' issue on appeal for lack of appellate jurisdiction." We disagree with Walker's contention that we lack appellate jurisdiction over this interlocutory appeal.
Civil Practice and Remedies Code section 51.014(a)(8) provides that "[a] person may appeal from an interlocutory order of a district court ... that ... grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001." TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon 2015). Pursuant to the Legislature's recent amendment of Education Code section 12.1056, "[a]n open-enrollment charter school is a governmental unit as defined by Section 101.001 [of the] Civil Practice and Remedies Code...." 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)); see also C2 Constr., Inc., 342 S.W.3d at 75-76(holding that open-enrollment charter school is governmental unit as defined in Civil Practice and Remedies Code section 101.001(3), and thus court of appeals has jurisdiction to hear interlocutory appeal from order 24*24 granting or denying charter school's plea to jurisdiction pursuant to Civil Practice and Remedies Code section 51.014(a)(8)).
Accordingly, we hold that because the Education Code provides that Neighborhood Centers is a governmental unit as that term is defined in Civil Practice and Remedies Code section 101.001, this Court has jurisdiction over this interlocutory appeal under the express language of section 51.014(a)(8). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8); id. § 101.001(3); 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)); C2 Constr., Inc., 342 S.W.3d at 82.
Plea to the Jurisdiction on Walker's Workers' Compensation Anti-Retaliation Claim
In her sole issue on cross-appeal, Walker argues that the trial court erred in granting Neighborhood Centers' plea to the jurisdiction on her workers' compensation anti-retaliation claim under Labor Code section 451.001. See TEX. LABOR CODE ANN. § 451.001 (Vernon 2015).
Walker argued in her original brief on appeal that "Texas courts have not decisively afforded entities like Neighborhood Centers immunity from suit" because the Education Code only provides that open-enrollment charter schools are immune from liability to the same extent as public school districts and does not explicitly mention immunity from suit. She also argues that "[a]n entity should not obtain immunity from suit merely by operating an open-enrollment charter school" and that granting Neighborhood Centers immunity from suit because it operates an open-enrollment charter school would not serve the purposes of governmental immunity.
Neighborhood Centers responds that numerous courts of appeals, including this Court, have held that charter schools enjoy the same immunity from suit as traditional public school districts. It further argues that, because the Texas Supreme Court has held that governmental immunity has not been waived for claims under the Workers' Compensation Act's anti-retaliation provision set out in Labor Code section 451.001, the trial court lacked jurisdiction over this claim of Walker's.
As set out above, the Legislature has effectively settled the issue of whether an open-enrollment charter school is immune from suit to the same extent as a public school by amending Education Code section 12.1056. Effective June 18, 2015, "[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...." Act of June 1, 2015, 84th Leg., R.S., ch. 922 (H.B. 1171), § 1, eff. June 18, 2015 (codified as Tex. Educ. BARCODE § 12.1056(a)) (emphasis added); see also C2 Constr., Inc., 342 S.W.3d at 82(holding that open-enrollment charter school is governmental unit for purposes of Tort Claims Act in Civil Practice and Remedies Code chapter 101); LTTS Charter Sch., Inc. v. C2 Constr., Inc., 358 S.W.3d 725, 735-36 (Tex.App.-Dallas 2011, pet. denied) (holding that open-enrollment charter school was immune from suit on plaintiff's contract claim just as public school would be).
Here, Walker sued Neighborhood Centers, a charter holder, for its actions related to operating its open-enrollment charter school. We conclude that governmental immunity from suit applies to Neighborhood Centers in this case, and the trial court lacks subject-matter jurisdiction absent a clear and unambiguous waiver of that immunity by the Legislature. See Tooke, 197 S.W.3d at 332-33; Miranda, 133 S.W.3d at 224-26; see also 25*25 City of Dallas v. Albert, 354 S.W.3d 368, 374 (Tex.2011) (holding that waivers of sovereign immunity or consent to sue governmental entities must generally be found in actions of Legislature). We therefore turn to whether Neighborhood Centers' immunity from suit has been waived for a workers' compensation anti-retaliation claim brought pursuant to Labor Code chapter 451.
In Travis Central Appraisal District v. Norman, the Texas Supreme Court addressed the issue of waiver of governmental immunity under the same statute Walker relies upon in her pleadings — "the Texas Anti-Retaliation Law, found in Chapter 451 of the Texas Labor Code, [which] prohibits a person from discharging or discriminating against an employee, who in good faith files a workers' compensation claim." 342 S.W.3d 54, 54 (Tex. 2011) (citing TEX. LAB. CODE ANN. § 451.001(1)). The court acknowledged that it had previously held that, while the anti-retaliation statute itself did not waive governmental immunity, the 1981 and 1989 versions of Labor Code chapter 504, also known as the Political Subdivisions Law, reflected a legislative intent to waive governmental immunity for retaliatory discharge claims under chapter 451. Id. at 56-57 (citing City of LaPorte v. Barfield,898 S.W.2d 288, 298-99 (Tex.1995) (holding that chapter 504 waives governmental immunity of political subdivisions for retaliatory discharge claims under chapter 451)).
However, the supreme court in Norman also observed that, following the 2005 revisions to the Political Subdivisions Law, the statute no longer contained a clear and unambiguous waiver of immunity from suit under the anti-retaliation provision. Id. at 57-59. The court concluded, "Because a retaliatory discharge claim may not be brought against the government without its consent and the Political Subdivisions Law no longer provides such consent by waiving the government's immunity, the underlying claim in this case must be dismissed." Id. at 59.
Following the supreme court's reasoning in Norman, we conclude that the Legislature has not provided a clear and unambiguous waiver of Neighborhood Centers' governmental immunity from suit on Walker's anti-retaliation claim. See id. Accordingly, the trial court lacked subject-matter jurisdiction over this claim and properly granted Neighborhood Centers' plea to the jurisdiction on this claim. See Tooke, 197 S.W.3d at 332-33; Miranda, 133 S.W.3d at 224-26.
We hold that Neighborhood Centers enjoys immunity from Walker's suit under the anti-retaliation provision of the Workers' Compensation Act in Labor Code chapter 451 and that the immunity of political subdivisions to suit under this chapter has not been clearly and unambiguously waived.
We overrule Walker's sole issue on appeal.
Plea to the Jurisdiction on Walker's Whistleblower Protection Act Retaliation Claim
In its sole issue on appeal, Neighborhood Centers argues that the trial court erred in denying its plea to the jurisdiction on Walker's retaliation claim under the Whistleblower Protection Act. It argues that, as a public charter school, it is not subject to the Whistleblower Protection Act and, accordingly, Walker cannot allege any waiver of its governmental immunity from suit under that statute.
Neighborhood Centers acknowledges that the supreme court has held that open-enrollment charter schools are "governmental units" under the Texas Tort Claims Act. See C2 Constr. Inc., 342 S.W.3d at 82. 26*26 However, it argues that the definition of "governmental unit" in the Tort Claims Act is broader than the definition of "local governmental entity" in the Whistleblower Protection Act. It argues that it is not a "political subdivision of the state" within the meaning of the Whistleblower Protection Act because it does not have the characteristics of a state governing board or of a traditional political subdivision of the state, such as the power to assess and collect taxes, a governing body that is either elected in local elections or appointed by locally-elected officials, or jurisdiction over a portion of the state. See Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 531 (Tex.1980) (providing characteristics that "political subdivisions" possess). Neighborhood Centers' argument thus turns on whether an entity operating an open-enrollment charter school falls within the definition of "local governmental entity" in the Whistleblower Protection Act such that its immunity from suit is waived for anti-retaliation claims filed under the Act.
On rehearing, Neighborhood Centers argues that the Legislature's adoption of Education Code section 12.1058 "makes clear that Neighborhood Centers is not subject to the Whistleblower Act; and therefore, there has been no waiver of immunity."
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).
The Whistleblower Protection Act also contains a waiver of immunity:
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.
[1] See TEX. LAB. CODE ANN. § 451.001 (Vernon 2015).
[2] See TEX. GOV'T CODE ANN. §§ 554.001-.010 (Vernon 2012).
[3] See TEX. EDUC. CODE ANN. §§ 12.001-12.156 (Vernon 2012 & Supp.2015). The Education Code provides for three classes of charters: (1) a home-rule school district charter; (2) a campus or campus program charter; or (3) an open-enrollment charter. Id. § 12.002 (Vernon 2012). The Promise Community School operates as an open-enrollment charter, governed by subchapter D of chapter 12.
[4] In her response to the motion for rehearing, Walker argues in part that the Legislature's 2015 amendments to the Education Code should not be applied retroactively to her case. Generally, we presume that the Legislature intends statutes and amendments to operate prospectively unless they are expressly made retroactive. See TEX. GOV'T CODE ANN. § 311.022; City of Austin v. Whittington,384 S.W.3d 766, 790 (Tex.2012). However, this general rule does not apply when the statute or amendment is procedural, remedial, or jurisdictional because such statutes generally do not affect vested rights, and procedural, remedial, and jurisdictional laws should be enforced as they exist at the time the judgment is rendered. Whittington, 384 S.W.3d at 790; see also Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex.2002) (holding that "not all statutes that apply retroactively are constitutionally prohibited" and retroactive statute violates constitution only if, when applied, it takes away or impairs vested rights). Here, the Legislature's amendments are relevant to the jurisdiction of the court to hear the case, and application of these statutes will not take away or impair a vested right. See Whittington, 384 S.W.3d at 790; Subaru of Am., Inc., 84 S.W.3d at 219. Accordingly, we consider the application of the Legislature's amendments that became effective prior to the issuance of our judgment in this case.
[5] Prior to its most recent amendment, section 12.1056 provided, "In matters related to operation of an open-enrollment charter school, an open-enrollment charter school is immune from liability to the same extent as a public school district...." TEX. EDUC. CODE ANN. § 12.1056 (Vernon 2012). The amendment changed the language of what is now subsection (a) and added subsections (b) (discussed above), (c) (providing that open-enrollment charter school is local government as defined by Civil Practice and Remedies Code Chapter 102, governing payment of tort claims), and (d) (providing that open-enrollment charter school is local governmental entity for purposes of Local Government Code chapter 271, governing liability of local governmental entities under certain written contracts). 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).
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