Texas Department of Family and Protective Services v. Markida Renee Mitchell, 510 S.W.3d 199

Background

Mitchell, a Department of Family and Protective Services employee, was injured by a third party while performing duties and filed a workers’ compensation claim.
After she was fired, Mitchell sued under the Texas Anti‑Retaliation Law alleging termination in retaliation for filing the claim and sought lost wages, future economic damages, exemplary damages, and attorney’s fees.
The Department filed a consolidated plea to the jurisdiction and motion to dismiss arguing sovereign immunity barred the suit and that the State Application Act incorporated Tort Claims Act limitations.
The trial court denied the plea, relying on the Texas Supreme Court’s decision in Kerrville State Hospital v. Fernandez; the Department appealed interlocutorily.
The Court of Appeals reviewed de novo whether sovereign immunity barred Mitchell’s suit and whether any claimed remedies were barred by immunity or by incorporation of Tort Claims Act limits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State Application Act waives sovereign immunity for anti‑retaliation suits by state employees	Fernandez controls; designation of state agencies as "employer" waives immunity	The State Application Act and later amendments removed or undermined Fernandez so immunity remains	Waiver remains; Fernandez controls — state agencies are not immune from suit under the Anti‑Retaliation Law
Whether the State Application Act’s §501.002(d) imports all Tort Claims Act limitations to bar most anti‑retaliation claims	Mitchell: §501.002(d) only incorporates damage caps and bar on exemplary damages as interpreted in Fernandez	Department: §501.002(d) makes anti‑retaliation claims subject to Tort Claims Act (e.g., limited to bodily injury, death, property damage; intentional tort bar)	Fernandez construed §501.002(d) to incorporate only Tort Claims Act damage caps and bar on exemplary damages; it does not limit causes of action to bodily injury/death/property damage
Whether exemplary damages and other remedies are recoverable against the Department	Mitchell seeks exemplary and economic damages (and conceded no attorney’s fees)	Department asserts immunity as to exemplary damages and any remedies beyond Tort Claims Act caps	Exemplary damages are barred (immunity from liability) and actual damages are capped ($250,000) — but these are defenses to liability, not jurisdictional bars to suit
Whether sovereign immunity can be asserted in a plea to the jurisdiction to dismiss the entire case	Mitchell: immunity from liability (caps/bar) is not jurisdictional and cannot justify dismissal	Department: immunity bars suit in whole or in part and supports dismissal	Sovereign immunity as to remedies is immunity from liability (affirmative defense), not immunity from suit; plea to the jurisdiction was properly denied

Key Cases Cited

Kerrville State Hospital v. Fernandez, 28 S.W.3d 1 (Tex. 2000) (State Application Act’s designation of state agencies as employers waives sovereign immunity for anti‑retaliation claims and §501.002(d) incorporates Tort Claims Act damage caps/bar on exemplary damages)
Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex. 2012) (distinguishes immunity from suit and immunity from liability; immunity from liability is not jurisdictional)
Tex. Nat. Res. Conservation Comm’n v. IT‑Davy, 74 S.W.3d 849 (Tex. 2002) (plea to jurisdiction reviewed de novo)
Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580 (Tex. 2002) (court of appeals bound by Supreme Court statutory interpretation absent overruling or legislative change)
Carnation Co. v. Borner, 610 S.W.2d 450 (Tex. 1980) ("reasonable damages" under anti‑retaliation law include lost income and benefits)
Holland v. Wal‑Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999) (attorney’s fees are not recoverable as "reasonable damages")
Hertz Equipment Rental Corp. v. Barousse, 365 S.W.3d 46 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) ("reasonable damages" include future damages and may include exemplary damages on a showing of malice)
Travis Central Appraisal Dist. v. Norman, 342 S.W.3d 54 (Tex. 2011) (statutory text determines scope of waiver of immunity; ambiguous revisions can preclude clear waiver)
Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528 (Tex. 2012) (State Application Act’s incorporation of Tort Claims Act precludes exemplary damages and caps actual damages)
Sweeny Community Hosp. v. Mendez, 226 S.W.3d 584 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (claims about damages implicate immunity from liability and are not resolved in a plea to the jurisdiction)