Kerrville State Hospital v. Fernandez, 28 S.W.3d 1

Kerrville State Hospital v. Fernandez

28 S.W.3d 1

Tex.

2000

Check Treatment

*1 HOSPITAL, KERRVILLE STATE

Petitioner,

v. FERNANDEZ, Respondent.

Rose M. Department,

Texas Parks and Wildlife

Petitioner,

Rogelio Gonzalez, Respondent. A. 98-1238,

Nos.

Supreme Court Texas.

Argued Nov. 1999. July

Decided

Rehearing Overruled Oct.

charging against or discriminating an em- ployee filing a compensation claim in faith good hiring legal repre- sentation such a claim. Tex. Lab.Code clearly applies 451.001. That law pri- employers. vate We have also held applies political subdivisions because the sovereign immunity. waived In these two cases consolidated for deci- sion, agen- we must decide whether state cies are also liable for violations Anti-Retaliation Law. We hold that Applications Act waives agen- cies’ under the Anti-Retaliation provided by Law to the extent otherwise Therefore, the Texas Tort Act. Claims affirm judgments ap- of the court of peals.

I employed by Rose Fernandez was Hospital Kerrville State as a nurse’s aide. job, injuries While on the she suffered her back and shoulder. filed a notice She injury compensation and claim for with Texas Workers’ Com- 17,1992, February mission. On her doctor light duty her to released return to work with April restrictions. On while waiting light duty position for a to become available, lump-sum she a obtained settle- ment of her claim with the Workers’ Com- pensation Attorney Division of the Gener- 22,1992, April Hospital al’s Office. On terminated employment her because she full-duty failed to return to work with a Halpern, Cornyn, Atty. David G. John release after the settlement. Gen., Talbot, Jr., Andy Taylor, A. David suit, brought alleging Fernandez Herrera, Austin, Nelly petitioner. R. Hospital employment terminated her Gonzales, Kenneth W. Howell. John because she filed workers’ Associates, Antonio, John Gonzales & San Hospital claim. The moved to dismiss for respondent. jurisdiction im- sovereign lack of based on munity, granted and the trial court its Chief Justice delivered the PHILLIPS Appeals motion. Fourth re- Court Court, opinion of the in which Justice (c) versed, that sections holding ENOCH, ABBOTT, Justice Justice of the State waives HANKINSON, O’NEILL, Justice Hospital’s immunity. 985 S.W.2d GONZALES, joined. Justice Rogelio by the employed Law of Gonzalez was The Anti-Retaliation the Texas prevents person Department Labor from dis- Texas Parks and Wildlife W”). (“TP immunity. See Federal 27,1990, has waived that July he serious- & On Univ., medical injured sought Sign his back 951 S.W.2d ly v. Texas Southern injuries. alleges State, for his He (Tex.1997); attention Duhart v. work, he asked that he returned when (Tex.1980); Lowe v. Texas through processed his medical bills (Tex. Univ., Tech *3 rather compensation insurance workers’ 1976). require our state The courts of policy. group health than his insurance unambiguous legislative expres clear and that he did not file a workers’ He claims sovereign they will hold sion before claim, however, because his compensation City been waived. See immunity has of Hartnett, supervisor, Ross immediate 288, 291 Barfield, 898 S.W.2d v. LaPorte doing discouraged him from so. strongly (Tex.1995); Indep. Pleasant Sch. Mount until pain continued to work Gonzalez Lindburg, 766 S.W.2d Dist. Estate of physician his instruct- when October Duhart, (Tex.1989); him and to an ed him to work referred at 742. orthopedic for further treatment. specialist again alleges that he re- Gonzalez when re unambiguous The clear and permission compensation to quested file itself, mere quirement is not an end but claim, him not file a Hartnett told he could guarantee to ad ly a courts method injury already claim had been because Therefore, legislative intent. here to non-job-related injury. On reported applied mechanical doctrine should not be Department September purpose the law. ly defeat the true pay on leave for placed Gonzalez without prima year. February years ago, explained In his doctor we one Several duty him return to work. light cy deciding released whether legislative intent TP him He contends that & W refused been sovereign immunity has waived: duty light work. govern- a waiver requiring The rule TP & Hartnett Gonzalez sued W and clear unam- immunity mental to be individually capaci both official his biguous applied rigidly so cannot be ty, alleging that their conduct violated the certain intent almost Fernandez, Anti-Retaliation Law. As Legislative intent disregarded. ture joint TP & W and Hartnett filed a motion polestar statutory con- remains jurisdiction to dismiss for lack of based on statutory struction. We will read sovereign immunity. The trial court if is reason- language pointless W, the motion as TP & granted but ably susceptible of another construction. it as denied to Hartnett. After trial If no reasonable doubt a statute leaves court and rendered a severed claims per- will not purpose, require of its we W, TP judgment ap final & Gonzalez clarity, determining fect even in whether on its in Fernan pealed. Based decision immunity been governmental dez, of Appeals the Fourth Court reversed waived. — trial court’s decision. —, 1998WL 904264. (citations at 292 omit- (the Hospital Both TP W and & ted). held that appeals’ “Agencies”) appeal court of had waived because could been granted petitions decisions. We their when reasonable intent discern another argument the causes consolidated provisions of the decision. had have Law would otherwise also Educ. Id. at see Texas all.

II 432, 446 Leeper, 893 S.W.2d Agency v. A (Uniform (Tex.1994) Judg- Declaratory Act waives from ments agencies are immune State fees). attorney liability Texas awards unless (a) B following provisions of the Tex- as Workers’ Act ... are (SAA) adopted except to they the extent that is one of several require gov statutes that ernmental entities to are provide workers’ inconsistent with this Act: compensation coverage insurance to their (1) 1, except Article the definition of employees. applies The SAA to most “employee” under Section 1.03.... agencies, including both & W and TP (b) [The Anti-Retaliation Law] Hospital. See & PARKS Wild.Code Safety 11.011; adopted except to the extent it is incon- Tex. Health & 532.001(b)(4). incorporates The SAA with sistent this article. For purposes many of the Act, laws of that the individual shall *4 applicable to private employers. In addi employer. be considered the tion, the SAA sets forth compen (c) Nothing in this Act or the Texas sation laws only apply that to covered Workers’ Act ... shall be agencies. state construed to authorize causes of action 1973, originally As enacted the SAA damages or against the state or incorporate did not institution, board, agency, department, 10, 1973, Law. May See Act of Leg., 63rd commission, or of the state R.S., 88, 16, § ch. 1973 Tex. Gen. Laws 195 beyond damages the actions and autho- (formerly codified as Tex.Rev.Civ. Stat. art. by rized the Texas Tort Claims Act.... 15, 8309g, § current version at Tex. Lab. (d) 501.002).1 § Wherever the word “insurer” or Thus, it did not waive law, “employer” adopted is used Anti-Retaliation Law claims. 1981, “state,” In the Legislature amended the the word “division” “di- SAA or adopt rector,” the Anti-Retaliation Law. Act See applicable, whichever is is sub- th 10, 1981, R.S., 352, of Leg., June 67 ch. purposes stituted for the of this article. 1, 15(a)(5), § sec. 1981 Tex. Gen. Laws 13, 1989, C.S., Act of Dee. 71st Leg.2d ch. 937.2 The again SAA was amended 1, 15.44, 15, 1, § sec. 1989 Tex. Gen. Laws 13, 1989, 1989. See Act of Dec. 71st 111-12 (formerly codified as Tex.Rev.Civ. C.S., 1, Leg.2d 15.44, ch. 1989 Tex. Gen. 15).3 8309g, § Stat. art. Laws 111. This version of the statute was in effect when Fernandez and Gonza Ill injured Therefore, lez were in 1992. inquiry

focus our on whether the 1989 SAA A agencies’ waives state immunity for Anti- Law Retaliation claims. appeals The court of in Fernandez be- Section 15 of the 1989 gan analysis by SAA stated: its based on holding, Bar- originally plicable, The Anti-Retaliation Law was en is substituted for the of nd 7, 1971, May acted in 1971. See Act this article. of 62 R.S., (c) Leg., For [the ch. 1971 Tex. Gen. Laws 884 Law], shall be (formerly individual consid- codified as art. Tex.Rev.Civ. Stat. 8307c). amended, employer. ered the It has never been but is (Vernon 8309g, § See art. 15 Chapter now codified as Tex.Rev.Civ. Stat. 451 of the Texas Supp.1986). Labor Code. 3.The 1989 version was recodified in 1993 as 2. The 1981 SAAstated: Code, chapter 501 of the Texas Labor and has (a) following Sec. 15. laws ... are again been amended twice. See Act of June th adopted ... 19, 1997, R.S., 1098, 3, 1997 * (5) [The Anti-Retaliation Law].... Tex. Gen. Laws Act of June n (b) "association,” 2.01, R.S., Wherever the words "in- leg., surer,” "subscriber,” "employer” or are Tex. Gen Laws 4927. Because the SAA laws, "state,” 1989, however, adopted used in the the word was not in the Labor Code in "director,” ap- provisions. "division” or whichever is we do to the not refer Labor Code dispositive to in the SAA was incorporation present mere field, holding. disagree. our We first Anti-Retaliation Law in the sentence 15(b) general and the defini- of Section both the 1981 we held that 15(d), provision, Section did tions 1989 versions Subdivi at 125. im subdivisions’ political Law waived sions Nevertheless, below, by said en- the court liability munity for anti-retaliation acting of Section the second sentence at 296-98. Section violations. 898 S.W.2d 15(c) SAA, Section 3(a)(5) of the 1981 Political ‘no “Texas left reasonable “if city provides provided to waive [state doubt’ that intended for ultimate access Charter ordinance immunity].” at 127-28. agencies’ discharge, wrongful court for the district 15(b), the court deter- applica is not Law] th mined, identify agen- was to the individual June ble.” worked, cy for which claimant 3(a)(5), R.S., 352, § ch sec. whole, as state By affording this Laws Gen. employee. The court then asked: cities, Leg we concluded choice “[W]hy Legislature specify would im must have intended islature *5 defendant an Anti-Retaliation proper munity: Law suit it did intend to the if not waive assuming Legislature did Now the immunity this agencies’ covered state from immunity in not waive

type According of suit?” Id. at 125. to al- as we have court, “logical it could solve this concluded, ready inconceivable that by concluding Legis- conundrum” that the Legislature to cities intended afford agencies’ lature intended to voluntarily waiving option either of immunity Id. from anti-retaliation claims. remedy a minimal immunity by making analysis court con- The used same to ordinance, or by available charter 15(c) expressed clude that also section suffering adoption of the Anti-Retalia- Legislature’s immunity: intent no of immuni- tion Law with waiver “If did not intend to waive ty.... Why Legislature give would the suits, immunity why to Anti-Retaliation voluntarily waiving option cities the of provision limiting would it have included a being not waive immunity or forced employee’s damages an actions and it? those contained Tort Claims Act?” Barfield, 898 S.W.2d at 296. at Because it no could discern elee The deleted the 1989 amendments 15(b) plausible meaning other of sections provision tion-of-recourse (c), the court held that inference 3(a)(5), they an election-of-rem but added waiver was unavoidable. an provision prohibiting edies suing under both the Anti-Retalia

B Act. See tion Law and the Whistleblower (Anti-Retaliation Agencies 451.001 The assert that section Tex. Lab.Code (Whistle- Law); satisfy 554.002 the clear unam Tex. Gov’t Act). 3(d) “[a] states that They draw a dis blower Section biguous requirement. bring wrong may an action for recognized person we tinction between waiver Anti-Retalia ful under both discharge [the under the Political Subdivisions Barfield Act].” provisions Law] Whistleblower Law the SAA 71st 2d Although require laws Act of December issue here. both 15.47, 3(d), C.S., ch. 1 sec. provide the affected bodies to 1, coverage their 113. We also concluded compensation insurance Gen. Laws immunity had certain waived employees, Agencies claim that including provision. Law Since in the language Political Subdivisions clearly had been waived for the satisfy Whistle- the clear and unambiguous require- Act, blower we reasoned Legisla that the disagree. ment. We ture must have intended to waive immuni State, Agencies cite Duhart v. ty for the because “it (Tex.1980) 742-43 and Bar require would make little sense to an em 295-96, field, 898 S.W.2d at for the prop ployee to elect between an action barred osition that a interpretation reasonable by immunity and one not barred.” Bar- specific statutory provision depend can field, 898 S.W.2d at 298. on possible acts of a legislature. future Agencies argue that turned Neither Duhart supports nor Barfield Barfield presence on the Duhart, election-of-recourse Agencies’ argument. or an Al provision. election-of-remedies construed statute providing workers’ though some courts of appeals have read highway benefits to state manner, in this Honhorst v. employees adopted Uni an exemplary Texas, versity North damages provision of the Workers’ Com 874-75 (Tex.App. Worth no pensation Law. incorpo We held that the —Fort pet.); Southwest law, Texas State Univ. v. En ration of one into another (Tex. riquez, more, 971 S.W.2d 686-87 without did clearly and unam denied); App. pet. biguously Carrillo waive the State’s —Austin Ctr., v. Texas Tech Univ. Health from liability exemplary Sciences damages. Duhart, 960 S.W.2d 872 (Tex.App. Paso 610 S.W.2d at Al —El pet.); Dep’t Texas though decision, Health v. not necessary to our Ruiz, (Tex.App.— 716-17 went on speculate that the exemplary denied), El pet. Paso this is an over damages provision was incorporated *6 simplification. actual reasoning Our was a Legislature case future waived the that Legislature must have intended to immunity. State’s Id. at 743. In Bar- immunity field, because we could not “dis we referenced this statement while [any] cern sensible construction” of those rejecting argument that incorporation provisions unless had been of the Anti-Retaliation Law alone waived waived. 898 at immunity. 898 S.W.2d at 295-96. presence The mere or absence of an elec Here, merely we are not dealing with a provision tion-of-remedies was not the dis- provision incorporates that another stat- positive in Barfield, factor and the absence ute. Far from merely incorporating the of such a in clause the SAA does not SAA, Anti-Retaliation Law into the necessarily mean Legislature that the did 15(b) second sentence of section actually not intend to agencies’ waive state immuni agency identifies the employer. as the Instead, ty. here, in both This is a clearer expression of intent than must look at whether a any statute makes Furthermore, incorporation. mere we do sense if is not waived. not think it reasonable to conclude that the 15(b) Agencies The argue Legislature that section would allocate its limited re- finding make sense without a of waiv- a during specific sources session to write a 15(b) er. They insist that while section lacks effect now and designates Instead, agency possibly individual as the give all time. 15(b) proper defendant an Anti-Retaliation meaning, section current and we con- suit, clude, provisions does so the event that a we did with similar future immunity by Barfield, waives that it no meaning has absent a gives statute or an individual waiver.

consent to sue the State for Anti-Retalia- C 15(b) tion Law violations. Since section 15(b) interpreted can be designates a manner that does Section the individual waiver, require finding a agency employer it cannot state as the

7 11, at Tex. Lab. § current version pro- 8309g, the Anti-Retaliation Law. Like the 501.022) injured Act an (stating § of the Political visions 15(b)of the see compensation); discussed section to employee is entitled no sense unless (stating SAA makes at Barfield, 898 S.W.2d also would immunity. Why ture waived waived immuni Subdivisions Law an individual Legislature designate claims). Aso general compensation ty for agency employer as the state 1973, the State Legislature created if the creating law a of action of a cause Divi Employees Workers’ for that cause cannot sued (the Attorney Office General’s sion Similarly, contem- action? “Division”) compensa handle workers’ to agency must be plates that the individual 15, 1973, 63rd May Act of tion claims. See have to suit. party an anti-retaliation We 3, R.S., ch.88, 16, § 1973 Tex. sec. Leg., entity making a state previously held 187, Act of repealed by Laws 195-96 Gen. necessary party intent th evidences R.S., Leg., June Leeper, See 6(3), Laws 1997 Tex. Gen. there at 446. therefore conclude that We (formerly at Tex. Lab.Code codified of section is no other sensible construction (b)). 501.042(a), stated 15(b). see Batfield, act Division that the Director “shall Op. Att’y No. DM-214 also Tex. Gen. capacity of insurer in the (1993) to ter- (advising agencies adversary act as an before [and] .... shall Anti- injured employees minate because of courts, legal presenting the board concerns); Op. Att’y Retaliation Law Tex. positions of the state as defenses and (1984) Anti- (stating No. Gen. JM-227 May Act of employer and insurer.” See applies employ- Retaliation Law to state ch.88, R.S., sec. 63rd ees). 187,197.4 4,1973 Laws Tex. Gen. com The overall structure of workers’ Legislature amended the In also conclu pensation suggests law incorporate SAA SAA, the Legislature sion. 67th Act of June Law. See sovereign immunity agencies’ waived state 15(a)(5), R.S., 352, § sec. injured bring allow workers Laws 937. 1981 Amendments 15, Gen. May claims. See *7 agency 11, designated the individual state 1973, R.S., ch.88, 16, § also Leg., 63ld see. law. purposes for that 187, (formerly employer as the 1973 197 Tex. Gen. Laws 15(c).5 2, the By designating § Ann. art sec. codified as Tex.Rev.Civ. Stat. Id. employ handling agency the The com state shall considered 4. framework workers’ 501.002(b). pensation changed In § claims since 1989. The er.” Tex. Lab.Code 1995, Legislature chapter 501 of occurring the amended injuries changes are effective for role 16, the Labor Code limit the Division’s 1, September Act of June 1995. See after responsibilities. agencies’ and increase state R.S., 980, 2.05, 1995, § Leg., 1995 74th ch. Legislature of the limited the Director 4912, Gen. Tex. Laws acting capacity insur Division to the of the 1997, th Legislature Divi- the dissolved the R.S., 1995, 16, Leg., er. See of June 74 Act 4912, replaced it 980, 2.03, with the Office sion § ch. 1995 Tex. Gen. Laws th Management. See repealed by Act 75 Risk 4927 Leg., of June Tex. Lab.Code 1098, R.S., 6(3), § Gen. office acts § ch. 1997 Tex. The director of this now 412.011. 4223, (formerly as Tex. Laws 4231 codified capacity the insurer. 501.042). § The 1995 amendments agencies 412.041(g). § The individual state Lab.Code agency provided that individual state employer purposes act still as the of the would act as Law. Anti-Retaliation SAA the th 1995, 16, of June 74 SAA. See Act R.S., 980, 2.01, Tex. Laws Gen. ch. 15(c) Act sec- became 5. Section 4912, (codified as 15(b) Lab.Code 1989 Act. See of Dec. tion of the 501.002(b)). states Section 501.002 now st 15.44, C.S., Leg., 2d sec. chapter of this that "[f]or 15(b), Gen. Laws 1989 Tex. Law], the individual Anti-Retaliation individual agency state as the “employer” shall be construed to and shall mean ‘a ” for purposes Law, political Anti-Retaliation subdivision.’ Act of June th Legislature R.S., 3,§ was distinguishing be sec. 3(b), general tween 1981 Tex. Gen. Laws 938. Be claims, for which cause operative the director of the neither the Work word of the ers’ employ “person”—nor Division is the Law— er, equivalent listed, claims, was anti-retaliation determined that for which it was not that Legislature the individual clear in agency employer. is the By “political tended making subdivision” to be designation, consid ered a “person” under the contemplated that agencies state would be Barfield, Law. 898 S.W.2d at 295. As a amenable to anti-retaliation claims. result, we concluded provision that Legislature would not have done so if state express did not a clear intent to waive agencies were immune from Anti-Retalia immunity. Id. 15(b) Thus, Law claims. section would have no if Unlike the cross-reference did not intend to See the Political Subdivisions Section Barfield, 898 S.W.2d at Chevron 15(b) clearly contemplates that agen- state Redmon, Corp. v. 316 cies are persons covered under Anti- (Tex.1987) (statutory language will not be Retaliation disagree Law. We with the dis- rendered meaningless if it can be reason 15(b) sent’s characterization of section construed). ably We hold that section “virtually identical” to the cross-reference 15(b) leaves no reasonable doubt that the provision of the Political Subdivisions Law. Legislature intended to waive agen state provisions The two have completely differ- cies’ immunity from Anti-Retaliation Law purposes. ent Unlike cross-reference claims. 898 S.W.2d at 292. 15(b) provision, section provide does not substituting instructions for one word for Relying on urges the dissent Instead, another in a series of statutes. defining state as the “em provides instructions for how ployer” does not because agencies treat state under a specified “employer” is not used in the Anti-Retalia If agencies statute.6 were not to be tion Law. The absence of the term “em “person,” included the term ployer” in the Anti-Retaliation Law does ture would desig- have had no reason to significance have the same in this case nate them as employers specifically while as it interpreted did when we the Political referencing the Anti-Retaliation Law. Subdivisions Law in The Politi Barfield. cal Subdivisions Law provision under scru The dissent have this ig- would Court tiny provided there plain 15(b), when the statutes nore the language of section *8 adopted by Law, the Political Subdivisions leaving absolutely purpose. with We Law, including the Anti-Retaliation were unwilling Leeper. used to do so in 893 “ ‘association,’ ‘subscriber,’ the words or S.W.2d at 446. And we were unwilling to ..., ‘employer,’ equivalents they their do so in where we said: “We will assertion, Contrary to the (formerly dissent’s the 1989 Tex. Gen. Laws 113 codified as 8309h, 3(a)-(b)), Political Subdivisions Law did not §§ contain a Tex.Rev.Civ. Stat. art. with st provision 13, 1989, stating C.S., purposes that for Leg., of the Act of December 71 2d 1, 15.47, 3(c), politi § § means ch. 1989 Tex. Gen. Laws Although cal (formerly subdivision. the 1989 Political 113 codified as Tex.Rev.Civ. Stat. art. 8309h, 3(c)). Subdivisions Law only §§ does contain a It was after the 1993 equating "employer” "political subdivi non-substantive recodification the of Labor sion,” provision only applies "employer” "political to laws in Code that means subdi (a); corporated in subsection the Anti-Retali for vision” of the Anti-Retaliation (c). 504.002(a)(8). incorporated ation Law § was in subsection Law. See Tex. Lab.Code We st 13, 1989, Compare recognized discrepancy of December 71 in 898 Barfield. C.S., 1, 15.47, 3(a)-(b), § §§ 2d S.W.2d at ture the Anti-Retaliation to statutory language pointless not read to be enacted we do reasonably employers, if it of susceptible of another restrain actions significance Legislature’s in the (citing place at 292 898 S.W.2d construction.” Redmon, 316; in “employer” use section rather Perkins v. of (Tex.1963)). 140,146 State, “person.” than 367 S.W.2d moreover, is, expla- a reasonable There D why Legislature for used the nation 15(b), term of on section we conclude “employer” “person” instead Based 15(b). to intended purpose section for under general agencies’ immunity was com- claims to differentiate workers’ Law. But this waiver pensation claims from Anti-Retaliation Anti-Retaliation complete. “em- need 8309g Law claims. Since article used 3(a)(5) that section ployer” responsible entity example, to describe the we concluded general compen- of the 1981 Political Subdivisions Law claims, Legis- political it made for the subdivi- sation sense waived 15(b). rein- “employer” only providing to use in section sions to the extent of lature pay as remedies. 898 statement and back Finally, Legislature’s note that the S.W.2d at 297. Since the 1989 enacting the Anti-Retaliation Law did such a not indicate protect employees Law was from retali- waiver, however, concluded that limited (“A ation. See 451.001 Tex. Lab.Code Legislature completely waived immuni- person may discharge or other Here, ty in Id. at the SAA that law. discriminate against employee. manner an on does not contain a limitation the extent added). ”)(emphasis ... An individual is waiver; therefore, we hold that the “employee” an respect with his to waive intended appeals employer. As court of Fer- completely. observed, “it nandez is axiomatic that a ‘person’ against cannot discriminate E ‘employee’ ‘person’ unless the is an ‘em- ” ployer.’ appeals 985 S.W.2d at 125. This Court also found court 15(c) already recognized on section of the SAA. waiver based Fernandez, “person” ture did not intend word at 126. That sec provides Law to be used that neither the SAA or the considering broadest sense: “When the Workers’ Act authorizes ac legislative history damages against governmental entire Anti-Re- tions or en [the Law], except taliation intent Legislature’s tities extent allowed Tort unmistakable: Claims Act. See Act of Dec. Law] ' C.S., 15.44, 15(c), apply only employees is intended to 71st 2d sec. Laws employers who act under the Texas Work- 1989 Tex. Gen. Civ. ers’ Compensation (placing Act.” Texas Mexican PRAC. & 101.023-.024 Rem.Code Bouchet, Ry. caps damages prohibiting on actual Co. (Tex.1998); disagree Baifield, punitive damages). accord 898 S.W.2d at We with the (“Forbidding appeals’ section. against retaliation an court of reliance on this 3(c) 15(c) to section seeking monetary benefits Section is identical *9 con Compensation the Worker’s Law the Political Subdivisions Law. We under 3(c) that a of the Political Subdivi presupposes sub- strued section Furr’s, scriber.”); Inc., v. in we stated 813 sions Law where Stoker that to the Tort (Tex.App. S.W.2d Paso the reference Claims —El denied) (“A 3(c) troubling in was because a person writ could not dis- section of that section would not charge person reading an unless that literal employer.”). Legisla- was an action under the Anti-Retaliation an Because allow or, matter, Law for that Because employer. under Work the Court refuses to acknowledge holdings ers’ at 298. that in Act. 898 S.W.2d one of our difficulty construing Bayfield Because of the in that cannot be reconciled with its hold- section, case, say join we could it in I ing that was a this cannot the Court’s and unambiguous expression opinion. forthright clear of waiv The Court should be difficulty Although interpret say er. we had in its discussion of and should Barfield 3(c), ing aspect analysis it could not that in that stated be we erred of our ignored. in completely Bayfield. Id. at 299. With re claim, to an spect Anti-Retaliation Law reflection, On I believe that the 3(c) recovery held that section limited adequately express ture did its intent damages the Tort available under sovereign immunity waive Act. Claims adopted the Anti-Retaliation Law when it 15(c) We part construe section law of the Political Subdivi- 15(c) the same way. SAA Section is not a sions Law. There could have no other been expression clear of waiver. It does incor language basis for including reasonable porate damage caps. the Tort in Claims Act’s it did the Political Subdivisions Thus, agencies that violate the Anti- in simply Law. Our decision was Barfield may liable wrong Retaliation Law be held on score. But we should not damages subject damages to the on repeat very limits that error holding that in the Tort Claims Act. in language similar Applications State immunity. According-

Act does join I ly, judgment. in the Court’s reasons, these judg- For we affirm the in failed The Court’s machinations its in appeals ments the court of both Fer- im attempt distinguish are Barfield nandez Gonzalez. plicit appeals to the three insult courts of faithfully applied analysis who our Barfield concurring Justice OWEN issued Applications to the Act and held that State opinion. was not waived. Honhorst See dissenting HECHT Justice issued Texas, University v. North S.W.2d BAKER, joined. opinion, which Justice (Tex.App. 874-75 Worth —Fort pet.); Southwest Texas State Univ. OWEN, Justice concurring. (Tex. Enriquez, S.W.2d 686-7 as it Try might, the cannot distin- Court App. denied); pet. Carrillo —Austin our guish holding Leg- that the Ctr., v. Texas Tech Univ. Health Sciences sovereign immunity islature did not waive 870, 871-72, (Tex.App. —El it “adopted” when denied); pet. Dept. Paso Texas Law the Political Ruiz, 716-19 Health v. that for purposes said of the Anti-Retalia- denied). (Tex.App. Paso writ —El Law, “employer” “political means sub- it We should candid and admit that was City Barfield, 898 division.” LaPorte v. strayed this Court (Tex.1995). 288, 295 The dissent appeals applying courts of Barfield. ably exposes Court’s rea- the flaws soning today that waive sov- the State did HECHT, joined by Justice Justice ereign similarly when BAKER, dissenting. Law in “adopted” the Anti-Retaliation firmly that for Act and said Texas law settled that can immu- of the Anti-Retaliation so, nity,1 when it use individual shall be considered the it must *10 288, (Tex.1995); City Guillory Barfield, LaPorte S.W.2d 291 v. Houston 1. v. 898 Port of

H statutes], “political “employer” means unambiguous language.2 clear and subdivision.”6 The Law does not we held v. City LaPorte First en- governmental a not show clear this 1971,3 currently in provides acted in it anti-retalia- intent to part: “employer” the word tion actions because Em- Against § 451.001. Discrimination Specifi- appears in that statute.7 nowhere ployees Prohibited cally, explained that may discharge A or person 504.002(b) applying that in states against manner other discriminate Law, “employer” has: employee because the employee As with “political subdivision”. means (1) compensation a filed workers’ the Political Subdivi- the 1981 version of faith; good claim is not “political subdivision” sions always has which equated “person”, with (2) a lawyer represent hired the Anti- operative word of been the claim; employee equation, Law. Absent Retaliation (3) or to be insti- instituted caused entirely clear whether proceeding good tuted in faith a under prohibit political intended to subdi- ture Compensation Texas Workers’ retaliatory discharge.8 visions Act]; or “adopted” also Legislature has (4) testify testified or is about Law and other statutes under proceeding [the Act]. Act, applies Applications which Remedies; of Proof 451.002. Burden Compensation Act to Workers’ Texas (a) person A who violates Section spe- more by covered employees damages for reasonable 451.001 hable cific The State provisions. by incurred as a result of Subdivisions Law Act and Political the violation.4 in tandem. Both originated and evolved “adopted” the Anti- part in 1973 as were first enacted Retaliation and several other statutes revising prior legislation replacing same Law,5 in the Political which Subdivisions making enactments workers applies the Texas Workers’ governmen- coverage applicable to various Act to certain entities. Sec- Both private employers.9 tal entities 504.002(b) passed bill were amended same Law states: time the “adopt” for the first 198110 that had been enact- applying the Anti-Retaliation Law

For again ed in 1971.11 Both articles were Law and certain other [Anti-Retaliation 812, 504.002(b). Auth., (Tex.), 813 cert. de 6. 845 S.W.2d Id. nied, 820, 75, U.S. 114 S.Ct. 126 L.Ed.2d 510 Univ., (1993); Texas 43 Lowe v. Tech 540 at 7. 898 S.W.2d 298. 297, 1976). (Tex. 8. v.

2. 898 S.W.2d Duhart 740, (Tex.1980); State, Texas R.S., 88, 10, 1973, 523, Cabeen, Leg., May 63rd ch. 9. 159 S.W.2d 527- Act of Prison Bd. v. 187, 1942, 16-17, (Tex.Civ.App. §§ writ 1973 Tex. Gen. Laws —Beaumont State, ref’d); Welch ref'd). (Tex.Civ.App. writ R.S., Leg., May —Dallas ch. 10. 67th 2-3, 352, §§ Gen. Laws 937- 1981 Tex. R.S., April 3. Act of 62nd 938. 884. 1971 Tex. Gen. Laws R.S., 451.001-.002(a). April §§ 4. Tex. Labor Code 62nd Act of Tex. Laws 884. Gen. Labor Code 504.002. *11 together in amended 198912and “political recodified and subdivision” in than more 15(b) in 1993.13 Section of the 1989 ver- argument one statute. This make- pure is Act, sion the State Applications which weight. present case, to the

applies states: Second, Legisla the Court explains, the For [the reason to “employer” ture had a define Law], agency the individual shall be con- Applications the State Act that it did not employer. sidered the in the have Political Subdivisions Purporting to follow the Court “distinguishing general which was between today holds provision clearly this and claims, compensation for which unambiguously does the im- waive State’s the director Workers’ munity for anti-retaliation actions. the Attorney Division [of Office] General’s In this case and in Barfield, the Court employer, is the and anti-retaliation thus

has construed two statutes re- sister claims, for which the agency individual is in origin, language, development, lated and employer.”15 the This is all hypothetical, One purpose. contains the sentence on course; enacting no below, one involved in and the left the other contains the sen- on right: amending Applications tence State Act ever And, For the For Anti- actually purpose as much. apply- said the Court ing [Anti-Retaliation Law], Retaliation the indi- footnote, concedes in distinction Law and certain other shall be vidual con- statutes], sidered the “employer” employer, longer important draws no is because means subdivi- “political agencies pur now act as sion.” poses claims. But besides The Court held in sen- Barfield relevant, made-up and being longer no on the clearly tence left does not explanation Court’s for the define need to ambiguously waive immuni- “employer” Applications the State Act ty. today Court holds virtu- fact unexplained: leaves one did the why ally right identical sentence on the does clearly Legislature also define in the ambiguously governmen- “employer” justifies tal such dispa- What Political Subdivisions Law? The Division results? rate did not act as the employer for political Why did subdivisions. First, Three things, says the Court. statutes, same change make the in both

reference the sentence from the State Applications importantly, why and more did it intend only, while Law the reference the sen- clearly unambiguously one sentence tence the Political Subdivisions immunity, yet im not waive to the Anti-Retaliation Law and other munity by the almost identical words statutes. the Court’s words: “Unlike postulated the other statute? The Court’s the cross-reference the Politi- [in explanation simply will not hold. Law], cal [of Third, says the Court that if the sen- not provide Act] defining “employer” Ap- tence in the State for substituting instructions one word for plications Act does not waive in a I another series of statutes.”14 can- then it at all.16 But not fathom what difference makes. very argument Political same' was made Subdivisions Law is no less just equates “employer” definite because it about same sentence in 12, 1989, 12. Act of December 71st 2d 14. Ante at C.S., 15.47, §§ & 15.44 1989 Tex. Gen. Laws 111-113. 7-8. 15. Ante at R.S., May 13. Act of 73rd 987, 1236-1240, 1993 Tex. Gen. Laws 16.Ante *12 today conclusion Law, the opposite cannot reach expressly and the Court

Subdivisions part a disavowing very the least without at rejected it. Duhart, reasoning of the of Barfield very putative purpose This sort of is the though refuses to do so. argument rejected in Duhart v. we (Tex.1980). State, 610 S.W.2d 740 There Appli- the State asserts that Court providing com- we a statute construed that “unambiguously states cations Act pensation highway benefits to state de- under the ‘persons’ are covered agencies partment employees, “adopted” which a Law”,18 simply but this is Anti-Retaliation provision Compensation of the Workers’ Act Applications does not The State true. Law a cause of action for preserving “person”, has not the word which mention of an exemplary damages for the death always word the operative been the by employer’s employee caused the Law, just the Political as gross negligence by intentional his “per- Law not does mention adop- act that this or omission. We held “employer”, which does son”. Both define provision tion a statute into one I appear not the Law. clearly unambigu- did not another it is reasonable to grant perfectly that ously immunity waive the State’s argue “person” a the Anti-Retalia- that the death liability alleged wrongful tion must because he be an employees. of one of its We reasoned discriminating against employees, and that exemplary damages provision the Act Applications both the State therefore did create a of action in not cause Law sug- Political Subdivisions event, only preserved any existing but and state gests political subdivisions that by preclusion action from the Workers’ subject to anti-retalia- agencies should be why Leg- Law. As held in squarely But we lawsuits. “adopted” would islature have exem- suggestion that was not Barfield plary damages provision in a statute waiv- enough unambiguous for a clear and which has as its sole the autho- immunity, either reach er of and we must against rization of claims in this disavow the same conclusion case or if it did not also intend to allow State Barfield. State, such action against that We did conclude Barfield may could surmise that be that “[i]t for anti- immunity had waived gov- a will future actions in the Political Subdivi- retaliation immunity of ernmental the State ex- provi- sions but so based on a we did emplary damages.” Whatever rea- Act Applications sion State been, have may adoption son of the a requires 504.008 have. Section provision was a exemplary damages provid- his person elect between remedies unambiguous clear of immu- waiver Law and the ed nity. Act. The latter statute ex- Whistleblower sufficiently analogous Duhart is immunity, former and if the pressly waives present require cases the same as not, nothing did there elect. would conclusion.17 An an action that election between one is not is a Hobson’s barred and suggest We were able to better Thus, we at all. con- or Du- choice—no election purpose for statute have here, cluded, Legislature could not act- hart are in those cases than we but rationally this election of requiring concluded that our inabili- ed nevertheless ty to could unless it intended that do so not be translated into remedies This the crux of was waived for both. was unambiguous legislative clear and intent to decision, every appeals court of The Court our governmental at 8. 898 S.W.2d at 295-296. Ante Applications construe the State Act has es so far to find a waiver of immunity as recognized.19 No today’s decision. The Court has pre- presents quan- rogative the same to reduce the standard for deter- dary. mining waiver of set, that it previously but it has no requirement *13 This Court’s that a waiver right to tax with meanings they words of immunity be and unambiguous clear is Legislature cannot bear. may have Legislature hard to meet. rou- decided, reasonably, plausibly, and even tinely language uses that leaves no doubt probably, that the State should be liable about its waive immunity.20 intent to Ab- for retaliating against who sent such clarity, unmistakable we have seeks just benefits found a statutory pro- waiver when a be, private as a person would but it has not vision that admits no other rational con- said so with the clear and unambiguous struction —such as Texas Uniform De- language many has often used other Act, claratory Judgments which mandates contexts, and that until now we have re- that governmental joined entities be quired. long really As as that is to be the some cases21 and authorizes an award of immunity, standard for waiver of judges’ fees,22 attorney Political Subdivi- ideas about and policy reasonableness can- sions But at this point Barfield. not meet it. line, now, we have drawn until insisting that the make certain its in- I respectfully dissent. tent in waiving immunity.

Today bar, the Court lowers the holding

that the can governmen-

tal immunity if its intent to do so seems

reasonable. Whatever merits this holding

may have as a rule of law do not include

fidelity precedent. to language “Rea-

sonable” not the simply equivalent is unambiguous”,

“clear and by any language.

stretch of And no case we have decided, certainly

ever reach- Texas, available....”); University nity 19. Honhorst v. N. shall not be Tex. Gov't (Tex.App. ("Sovereign § 874-875 Worth immunity 554.0035 is —Fort pet.); Southwest Texas State Univ. v. liability waived to the and abolished extent of (Tex. Enriquez, 971 S.W.2d 686-687 chapter for the under relief allowed this denied); App. pet. Carrillo v. ....”); 2007.004(a) ("Sovereign § immunity —Austin Ctr., Texas Health Tech Univ. Sciences liability waived to suit and is and abolished to (Tex.App. Paso liability by chap- the extent created this —El Ruiz, denied); pet. Dept. Texas Health v. ter.”); 2007.024(a) ("Sovereign § immunity (Tex.App. 960 S.W.2d 716-719 Paso liability —El to waived and suit and is abolished to denied). pet. liability chap- the extent of created ter.”); 52.035(c) ("The § Tex. Nat. Res.Code 63.007(b) E.g., § & Tex. Civ. Prac. Rem.Code right sovereign state waives its claim im- ("The sovereign immunity state’s to suit is action....”); munity Prop.Code waived_”); ("Governmental § im- 81.010 74.506(c) ("The § immunity state’s from suit abolished....”); munity to suit is waived respect without consent abolished with ("A § 101.021 unit in the state section.”). brought suits under this for_"); § ("Sovereign is liable 101.025 ”); is waived .... suit 37.004(a), §§ 21. Tex. Civ. Prac. & Rem.Code 103.002(a) ("... § the state’s 37.006(a)-(b). waived."); 110.008(a) ("... the suit is sov- ereign immunity liability suit and from 37.009; abolished....’’); Agency Leeper, waived TexasEduc. Tex. Educ.Code 51.901(b) ("The (Tex.1994). sovereign 445-446 defense immu-