*1 Mann, nation of relevance. See Further,
at 93-95. we find that State
proved beyond a reasonable doubt that
Appellant committed these extraneous of- Accordingly, Appellant’s
fenses. com-
plaints are without merit. Point Error
No. Five is overruled. overruled Having error, Appellant’s
each of points of we judgment
affirm the of the trial court. MED UNIVERSITY OF TEXAS
ICAL BRANCH AT GALVES
TON, Appellant,
Terry SAVOY, Appellee.
No. 09-01-496-CV. Texas, Appeals
Court of
Beaumont.
Submitted Feb. Aug.
Decided *2 jurisdiction, and plea to the
nied UTMB’s appealed. See UTMB Tex. Civ. Phac. & (Vernon 51.014(a)(8) Ann. Rem.Code alternatively sued Supp.2002). Whistle- violating Texas UTMB for Act. See blowers’ Ann. Tex. Gov’t Code (Vernon Supp.2002). 1994 & 554.001-.010 granted court plead- alternatively jurisdiction on the claim, Savoy appeal- and ed whistleblower ed. resolved first Legislature is whether under Labor sovereign immunity
waived for a of action cause System. University of Texas against the governmental hold that a enti We cannot been waived ty’s sovereign has unambiguous find and stat unless we clear Legislature utory in which the language Gen., Cornyn, Atty. Howard John G. immunity. City La- has waived Gen., Baldwin, Jr., Jef- Atty. First Asst. Barfield, 898 Porte v. Atty. frey Boyd, Deputy Litiga- S. Gen. for (Tex.1995). the Leg The extent which tion, Chief, Hunter, Litigation Toni Gen. Texas adopted islature Workers’ Com Juren, Division, Gen., Nancy Atty. K. Asst. pensation Act for Univer Austin, Div., Litigation appellant. for Gen. System is set Section sity of Texas forth Morgan, Morgan, John Snider & S. Code, Labor as fol 503.002 of the Texas Beaumont, LLP, appellee. for lows: General Application 503.002. WALKER, C.J., Before BURGESS Laws; Compensation Limit Workers’ GAULTNEY, JJ. Damages on Actions and (a) following provisions Subti- OPINION are in this apply tle A included WALKER, L. Justice. RONALD Chief they except the extent chapter chapter: employer, inconsistent with Terry sued are University of Medical Branch at Texas (1) Chapter than Section other (“UTMB”) wrongful termi- “employee”; defining in violation of employment nation of her (2) 402; Chapter provi- hotline anti-retaliation (3) Chapter other than Sections Compensation in the Texas Workers’ sion 403.001-403.005; §§ Act. 411.081- See Tex. Lab.Code Ann. (4) 405; 1996).1 Chapter The trial de- .083 defendant, appeal are the claims filed another Although originally named as plaintiff, Holly Rice’s was severed Department Rice. of Criminal Justice was County. to Galveston at issue in and transferred dismissed from the suit. Also not 406.031-406.033; Violations) ports Sections Safety Sub- Chapter (Workers’ D, 406; chapter Chapter Health Safety) part Sections 406.093; Compensation Texas Workers’ 406.092and Act. There- fore, adopted the statute that the Workers’ Chapter other than Sections *3 Compensation Act for of the 408.001(b) (c); of University System not did incor- (7) Chapters 410; 409 and porate Section 411.083.2 G, Subchapters A Chapter Savoy argues that Kerrville Hos State 411, other than Sections 411.003 and (Tex. Fernandez, pital 411.004; and 2000), supports Leg a that the conclusion (9) Chapters 412-417. permit islature intended to such suits (b) purpose For the applying of Kerrville, Savoy’s. disagree. We In (a) provisions by listed Subsection Act, involving Applications case the State chapter, “employer” means “the in- the Supreme legisla Court held that the stitution.” tive immunity intent sovereign waive (c) Neither this nor chapter Subtitle 15(b) expressed which Section A authorizes a cause of action or dam- states, Anti-Retaliation is “[The Law] ages against system any or institu- adopted except to the extent it is inconsis or tion employee system or insti- tent purposes with this article. For beyond tution damages actions and Act, agency individual shall be 101, authorized by Chapter Civil Prac- considered the Id at 4-7. In employer.” tice and Remedies Code. Kerrville, the whether the Leg issue was Tex. Lab.Code Ann. 503.002 sovereign had islature intended waive 1996). by on a action created cause of Compensation section of the Workers’ Act argues, Labor provid that it adopted purpose for 503.002(a)(8) “§ expressly incorporates ing coverage compensation workers’ for 411, Chapter exception the only with being the employees agencies. state certain §§ 411.003-4.” is wrong. She Labor Code contrast, Id. By here is whether issue 503.002(a)(8) incorporated two of the the Legislature sover intended waive Chapter 411, four sections contained eign immunity on a cause of action created Subchapter A, two con sections in a Compensation of the section Workers’ G, in Chapter tained Subchapter Act, i.e., 411.083, that it did not Section any part Chapter 411, did not include adopt provided in the statute that workers’ B, C, D, Subchapters E, F, Impor H. or compensation coverage employees of tant here is that Labor Code 411.083 the University System. of Texas (Judicial Retaliation) Employer Relief for is contained in one the excluded juris- sub- We hold the trial lacked chapters, Subchapter F (Employee Re- diction Terry Savoy over the claim that 13, 1989, C.S., 2. The source Leg., law Labor Code 503.002 Act ch. of Dec. 71st 2d 15.39, states: sec. 1989 Tex. Gen. Laws 109. The provisions following of the Texas hotline anti-retaliation statute is Compensation Workers’ Act ... are through contained in 7.09. Act Sections adopted govern except and shall to the ex- 13, 1989, C.S., Leg., of Dec. 2d ch. 71st they tent are inconsistent this Act: 7.08-.09, §§ 1989 Tex. Gen. Laws 66-67. through except Articles 5 Sections though 7.09. Savoy’s mail. affidavit brought voy of Texas certified against 5, 2000, stated, the di- September Branch for violation Medical “On services, nursing is facility § 411.083. of the of Labor Code UTMB’s rector appeal and rejected my Mysliwiee, sustained. Elaine II at the Level upheld the termination Savoy’s challenge three issues Level II appeal. I received this granting of the to the of 2000.” did September about claim.3 The Whistle- whistleblower a Level 3 not initiate ap Act of the requires blowers’ invocation stated, as follows: written peal procedure by public employee with the If the individual is satisfied the claim. Tex. bringing Code Ann. Gov’t official, a writ- decision of level *4 If Supp.2002). a final 554.006 why decision is stating ten the response 61st decision is rendered before the submitted to the unacceptable must be the initiated day employee after the date within the individual by level two official employee may the the elect to ex appeal, (5) working days receipt the five applicable procedures, or haust the termi level decision. This written re- procedures nate the file suit. Id. and at- sponse requests appeal that the trial that the Savoy court found abandoned within two tachments forwarded appeals process days had before 60 official, days to the level three working elapsed. the Chief Administrative Officer for 1, 2000, McFaddin, Lynn On the August Care, Managed [emphasis original] in Unit, Manager the Nurse Stiles notified states, “Then, Appellant Savoy’s brief Savoy in that writing Savoy’s employment Lynn McFaddin, a third letter to wrote with UTMB would be terminated effective Savoy a level which considered as Ms. that day. Savoy appellate initiated the appeal, it three because she wrote after process by giving supervisor, notice her appeal.” [em- the denial of her level two Lynn McFaddin, 3, August on Her 2000. in original] This is not phasis assertion Level 1 appeal by Eddy was decided Chas- only the corre- tain, supported by record. The Nurses, Regional the on Director of spondence Savoy from to McFaddin that 17, August Savoy 2000. initiated her Lev- in 2 we have been able to locate the record is by el appeal giving notice letter to Savoy’s Brown,4 August the 3 letter that initiated personnel Barrett the manager, 23, 1 testified that August Mysliwiee, 2000. H. Level McFaddin Elaine Director, communication with Facility Nursing the de- she no further Services 5, Savoy appeal September Savoy. During hearing, nied the the testi- fied, that mailed “I was letter to thought Notice of decision was to Sa- that that provided Appellant in that Issue one: The trial court erred dismiss- decision adverse right Appellant ing with a to file suit. Appellant’s Whis- claim under the Texas Act, in Issue three: trial court erred dis- et tleblowers 554.001 Gov’t Tex. Code missing Appellant’s claim under Texas seq., Appellant seventy-one because filed suit Act, Whistleblowers initiating days appeal process, after Tex. Gov’t Code seq., et because trial court has sixty- permits law file Texas her to over claim. (61) days initiating appeal pro- one after cess. required employee 4. The submit official, two: erred in response Issue court dismiss- to the Level 1 the written Chastain, ing Appellant’s claim under the Texas Whis- in case was Eddie who Act, appeal et on the that tleblowers UTMB acted Level Tex Gov’t seq., made a final initiated with Brown. because the UTMB had Lynn McFaddin that was Level I. (Tex.App.-Eastland pet. That de supervisor immediately nied); was the City Marin, over me San Antonio v. So, I appealed terminated me. to her (Tex.App.-San 440 n. 2 Anto documentation. She said her re- pet.). nio no sponse to me she it. passing was Then I upon relies cases that are distin got the letter from Eddie Chastain who guishable, such said he denied the grievance.” Hohman, Medical Branch at Galveston v.
Savoy’s affidavit stated that she tried to 767, (Tex.App.-Houston [1st initiate a Level III by talking to 1999, pet. w.o.j.). Dist.] dism’d The issue in Brown, Barrett calling peo- several plaintiffs was timely Hohman whether the Galveston, ple in who told she grievance pro initiated administrative pursue any appeals could not further cedure, where it unclear whether the any grievances. people told She grievance procedure ap established gave Galveston that law me right “the ply longer employed by to individuals no appeal.” another level of At the hear- defendant. The held a let ing, Savoy testified that she left messages ter plaintiffs’ from the counsel was suffi with Brown’s office and with cient put the defendant on notice that *5 but any response. she never received Sa- the seeking nurses were some sort of ad voy Murray, Acting called Dr. the Director remedy. ministrative Id. at 774-75. In Nursing of for the UTMB Southern Re- Marin, City v. city San Antonio the of gion, but he did not return her calls. only days filed suit after During hearing, however, initiating the arbitration. The Marin Court Savoy ad- prohibits held “clearly mitted that no one told that Section 554.006 her that she could Mysliwiee not a suit within stating being anytime write letter to from filed 60 why unacceptable. procedure her decision days grievance was The of the date the only is people spoke in regarding she to 2000 19 at 441. That initiated.” S.W.3d whis- Savoy termination were secretaries. ad- tleblower suit was dismissed for lack of jurisdiction. mitted that Chastain told her not to call Murray Dr. only in connection with her v. appeal, Another Fort Bend I.S.D. Riv disciplinary previous year, action the and era, 14-01-00721-CV, 2002 No. WL that no one told her she not could write to 576031, *4 (Tex.App.-Houston [14th Dist.] Dr. Murray appeal or to third the level. h.), Apr. 18, pet. also held that no judge’s The record supports the find- unclear, entity’s policy where an is the 1) ings: Savoy, who successfully had employee’s terminated claim will not be appealed a previous year, termination the statutory barred the of the requisites experienced was the procedural with as- Rivera, In the policy Whistleblowers’ Act. pects the grievance appeal proce- of a required the official in meeting, 2) dures; Savoy to failed remain question employ refused to meet with the appeal process in full sixty the for the ee. Id. at *3. days, process but instead abandoned the at argues Savoy repeated phone that her days
the sixty second level before calls to in satisfied secretaries Galveston expired. policy’s requirement “it notice because Savoy was to additional unclear Ms. what
Government Code Section 554.006 In requires steps appeal.” an could to order employee to each she take step initiate grievance procedure appeal, to initiate the 3 may before Level simply clearly Savoy be filed under Act. required the Whistleblower See Dublin, provide Johnson 46 City person S.W.3d written notice to the who
787 opinion considered It this Court’s Septem- 2 is On Level decided not intention- legislature Facility Nurs- the Director ber whis- 'writing, ally sovereign in Savoy notified waive ing Services receipt II to do so for retal- “I of the Level tle but refuse follows: am blowers or, your iatory discharge I have re- as is appeal of termination. case, of the the information and concur retaliation for utilization
viewed deny your appeal.” practical Al- the decision to effect [FN2 hotline. Sep- though Savoy received the notice UTMB carte grant this would provide did not written anything tember she other to retaliate for blanche response Mysliwiec any other UTMB If that than blowers. were whistle case, official. UTMB em- chilling effect on compensa- pursuit of workers’ ployees’ date was Savoy’s effective termination hotline) (or could tion use of the claims pro- appeal initiated August long deprive them of well serve Act August 3. The Whistleblowers’ cess right in this Given recognized state.] pro- appeal in the required her to remain legislature’s doubt as to the Court’s City days. cess for Johnson v. intention, practice I believe the better Dublin, 405; City San deny Plea to would be defendant’s Marin, Antonio v. 19 S.W.3d at at this time.... Jurisdiction than in less Level resolved a Level 3 days. did initiate po- juxta judge The trial considered response, appeal by submitting a written ruling statutes and made a sition of similar why unacceptable, stating the decision was I concur upon based those considerations. days receipt working within five of her there- judge’s analysis and with the trial *6 Accordingly, Savoy the Level decision. one. fore overrule issue satisfy mandatory statutory did not
prerequisites filing suit under the Whis- properly
tleblowers’ Act. The trial court jurisdiction. plea to the
granted
Savoy’s cross-points are overruled. juris- hold that trial lacked
We RAILROAD MISSOURI PACIFIC the cause. trial diction hear court’s Rail Pacific COMPANY Union d/b/a granting University order Slone, Company and William R. road plea Medical Branch at Galveston’s to the III, Appellants, Terry Savoy’s whistleblow- claim is affirmed. trial court’s er DEVELOPMENT LELY of Texas denying order CORPORATION, Branch at to the Medical Galveston’s Appellee. jurisdiction regarding sovereign immunity 03-01-00552-CV. No. Terry Savoy’s hotline retalia- dismiss the tion claim is reversed. We Texas, Appeals Court jurisdiction. cause for lack entire Austin. DISMISSED. CAUSE Aug. Nov. Rehearing Overruled Justice, BURGESS, dissenting.
DON one. The respectfully I dissent to issue counsel, all judge, in his letter
stated: