Opinion
15-24-00054-CV
12-03-2024
HEALTH AND HUMAN SERVICES COMMISSION, A/K/A TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES, Appellant v. KATHY NAVARRO, Appellee
On Appeal from the 384th District Court El Paso County, Texas Trial Court Cause No. 2023-DCV-3837.
Before Chief Justice Brister and Justices Field and Farris.
MEMORANDUM OPINION
April Farris Justice
This interlocutory appeal arises from a dispute about which whistleblower statutes apply against state entities. Appellee Kathy Navarro sued Appellant El Paso State Supported Living Center ("EPSSLC")-which undisputedly is a part of the Health and Human Services Commission ("HHSC")-and HHSC itself, alleging that EPSSLC unlawfully retaliated against her by terminating her employment for reporting abuse and neglect of patients by EPSSLC staff. The Texas Whistleblower Act expressly waives immunity for retaliation claims against government entities by employees who make a good faith report of a violation of law. See Tex. Gov't Code § 554.002. But Navarro did not file suit under that statute because she did not make her report to "an appropriate law enforcement authority" as it requires. Id. She sued instead under a whistleblower statute applicable to healthcare facilities that requires a report "to the employee's supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency." See Tex. Health & Safety Code § 260A.014. Unlike the general whistleblower statute, the latter statute says nothing about waiving immunity of government entities.
Specifically, HHSC has asserted, and Navarro does not dispute, that EPSSLC is a state-run supported living center operated by HHSC under Section 531.002(19) of the Texas Health & Safety Code and is not a separate entity from HHSC for purposes of liability and litigation. See Texas Health & Hum. Servs. Comm'n v. Enriquez, 642 S.W.3d 21, 26 (Tex. App.-El Paso 2021, no pet.) (stating HHSC is the umbrella agency under which EPSSLC operates).
HHSC filed a plea to the jurisdiction seeking to dismiss the case on the ground that sovereign immunity bars Navarro's retaliation claim. The trial court denied the plea, and HHSC filed this appeal challenging the trial court's decision.
Because we conclude sovereign immunity bars Navarro's retaliation claim, the trial court erred in denying HHSC's plea to the jurisdiction. We therefore reverse the trial court's order, render judgment that the trial court lacked subject matter jurisdiction over Navarro's retaliation claim, and dismiss Navarro's claim with prejudice.
Background
EPSSLC hired Navarro as a dental hygienist in 2023. Navarro alleges that in May of that same year, she called EPSSLC's reporting hotline and made a good faith report that EPSSLC staff had allowed a patient to fall. Navarro further alleges that she made a good faith report of patient abuse regarding a different incident to her immediate supervisor in August 2023. EPSSLC terminated her employment on August 15, 2023.
Navarro filed the underlying lawsuit against HHSC and EPSSLC, contending that she was terminated in retaliation for the reports she made. HHSC filed a plea to the jurisdiction asserting that sovereign immunity barred Navarro's retaliation claim. The trial court denied the plea. HHSC then filed this interlocutory appeal, which we now consider.
Applicable Law
"Because sovereign immunity implicates a trial court's subject-matter jurisdiction, it is properly asserted in a plea to the jurisdiction." Christ v. Texas Dep't of Transportation, 664 S.W.3d 82, 86 (Tex. 2023). We review a trial court's ruling on a plea to the jurisdiction, including any questions of statutory construction, de novo. Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). Sovereign immunity encompasses "two distinct principles, immunity from suit and immunity from liability." Tex. Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). HHSC raises only immunity from suit, which "prohibits suits against the State unless the State expressly consents to the suit." Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Such consent "must ordinarily be found in a constitutional provision or legislative enactment." Id. at 695.
A plea to the jurisdiction "may challenge the pleadings, the existence of jurisdictional facts, or both." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). HHSC's plea challenges Navarro's pleadings. For a plea that "challenges the pleadings, we determine if the plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction." Id. In suits against a state entity, the plaintiff has the burden to prove that the pled facts, if true, affirmatively demonstrate that sovereign immunity either is inapplicable or has been waived. Matzen v. McLane, 659 S.W.3d 381, 388, 394 (Tex. 2021). A plea will be sustained if the face of the pleadings affirmatively demonstrate incurable defects of jurisdiction, even if all the allegations in the plaintiff's pleadings are taken as true. Tex. Tech Univ. Sys. v. Martinez, 691 S.W.3d 415, 419 (Tex. 2024); Miranda, 133 S.W.3d at 226-27.
Navarro incorrectly contends that HHSC has the burden to prove the trial court lacks jurisdiction over her claim. That is not the case where a state entity is being sued. See Matzen, 659 S.W.3d at 388, 394. The case Navarro cites in support of her position, Stephens v. Three Finger Black Shale P'ship, involves only private entities. 580 S.W.3d 687 (Tex. App.-Eastland 2019, pet. denied).
Analysis
In its one issue on appeal, HHSC challenges the trial court's order denying HHSC's plea to the jurisdiction, which raised sovereign immunity against Navarro's claim under Section 260A.014 of the Texas Health & Safety Code. HHSC contends that no language in Chapter 260A of the Health & Safety Code or elsewhere expressly or implicitly waives immunity for suits filed under Section 260A.014 and so HHSC retains immunity. HHSC further contends that EPSSLC is not a "facility" under Section 260A.014 and, because Section 260A.014 only applies to suits against "facilities," HHSC cannot be sued under that provision. Navarro responds that the Legislature intended to waive immunity under Chapter 260A and that EPSSLC is a facility under Section 260A.014.
We agree with HHSC that no language in Chapter 260A or elsewhere waives immunity for Section 260A.014 claims. As this disposition resolves the case, we need not and do not address whether EPSSLC is a facility under Chapter 260A.
Section 260A.014 states "[a]n employee has a cause of action against a facility [that] . . . terminates the employment of the person . . . for reporting to the employee's supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency a violation of law . . . ." Tex. Health & Safety Code § 260A.014(b). A "facility" is defined as:
(A) an institution as that term is defined by Section 242.002;
(B) an assisted living facility as that term is defined by Section 247.002; and
(C) a prescribed pediatric extended care center as that term is defined by Section 248A.001.Id. § 260A.001(5). Navarro contends that EPSSLC is an institution and an assisted living facility.
For 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." Taylor, 106 S.W.3d at 696; see also Tex. Gov't Code § 311.034. Certain statutes provide that a state entity may be sued, or expressly state that sovereign immunity to suit is waived. See Tex. Gov't Code § 554.0035 (waiver of immunity in Texas Whistleblower Act); see also Taylor, 106 S.W.3d at 697 n.6 (citing examples of express waiver language in statutes).
There are no express waiver statements or "magic words" akin to "sovereign immunity to suit is waived" in Chapter 260A or elsewhere for Section 260A.014 claims. Generally, where there is no such language, the Texas Supreme Court has "employed several aids to help guide [the] analysis in determining whether the Legislature has clearly and unambiguously waived sovereign immunity." Taylor, 106 S.W.3d at 697. These aids are: (1) the statute must still waive immunity "beyond doubt" even if the language is not a model of clarity, such as through necessary implication "when the provision in question would be meaningless unless immunity were waived"; (2) the court generally resolves ambiguities in statutes in favor of retaining immunity; (3) where "the Legislature requires that the State be joined in a lawsuit for which immunity would otherwise attach," immunity is waived; and (4) where monetary damages are permitted against the State, "whether the statute also provides an objective limitation on the State's potential liability." Id. at 697-98.
Applying these four aids, it is clear that there is no "clear and unambiguous" waiver of immunity from suit for claims under Section 260A.014. Regarding the first aid, immunity is not waived beyond doubt. There is no language in Chapter 260A detailing claims against state-run facilities specifically, let alone any language waiving immunity for such facilities. Only one provision in Chapter 260A mentions immunity at all, and that provision grants immunity from civil and criminal liability to employees who report a violation of law. Tex. Health & Safety Code § 260A.009(a).
Nor is Section 260A.014 meaningless without waiver. It undisputedly allows claims against privately run facilities. Id. § 260A.014. That fact makes this case similar to Wichita Falls State Hospital v. Taylor. 106 S.W.3d at 700. In Taylor, the appellant argued that an Act authorizing claims against mental health facilities applied to both private facilities and public facilities operated by the state agency at issue, the Texas Department of Mental Health and Mental Retardation (the "Department") based on the statutory definition of "mental health facility." Id. at 698-99. Although the Court agreed that the definition of "mental health facility" included state-operated facilities, the Court reasoned that sovereign immunity was not waived because the Act was not meaningless absent a waiver of sovereign immunity. Id. at 699-700. After all, the Act created a "meaningful cause of action against private mental health care facilities," a claim that would "remain[] viable despite the retention of immunity." Id. at 700. Similarly here, the fact that claims under Section 260A.014 could still be brought against private facilities even if claims against state entities were barred demonstrates Section 260A.014 would still be meaningful if the statute is construed to retain immunity.
Turning to the second aid mentioned in Taylor, Navarro's claim fares no better. Navarro argues that immunity is waived because HHSC judicially admitted that EPSSLC is a "facility" as defined under Chapter 260A, and Chapter 260A creates a cause of action against a facility for retribution for reporting abuse and neglect to the state agency itself or to the employee's supervisor. Tex. Health & Safety Code § 260A.014(b). As support for her argument that HHSC has conceded the question of whether HHSC is a facility, she points to HHSC's statement in its reply in support of its plea to the jurisdiction that HHSC "did not raise the argument that the EPSSLC is not a 'facility'" and referred to this question as a "non-existent material factual dispute . . . ."
We need not determine whether HHSC judicially admitted EPSSLC-and consequently HHSC as its owner and operator-is a facility because, even if EPSSLC is a facility, HHSC still retains immunity. Assuming arguendo that EPSSLC falls under one of the two definitions of "facility" at issue, the statute would at most be ambiguous as to whether Section 260A.014 waives immunity, and "ambiguity precludes our finding an unmistakable Legislative intent to waive sovereign immunity." Taylor, 106 S.W.3d at 701. In Taylor, the Texas Supreme Court held that the express inclusion of the relevant state agency within the definition of a "mental health facility"-taken together with statutory language providing that a patient "may sue" a "mental health facility"-created no more than an ambiguity with respect to whether the Legislature intended to waive sovereign immunity. Id. Here, none of the three definitions of "facility" expressly includes HHSC or any other state entity for that matter. If a statute is ambiguous when a definition section explicitly encompasses the state agency at issue as in Taylor, there is no clarity on the facts in this case.
Navarro further asserts that the Legislature's intention to waive immunity is clear when the Court compares this statute with a different provision of the Health & Safety Code. Navarro contends that waiver for state-run facilities was intended because Chapter 241 of the Health & Safety Code expressly exempts state-run facilities from claims under that Chapter while Chapter 260A does not. Specifically, Section 241.004 of the Texas Health & Safety Code titled "Exemptions" states "[t]his chapter does not apply to a facility . . . maintained or operated by this state or an agency of this state." Navarro, however, erroneously conflates a carve out from statutory coverage in one chapter with a waiver of immunity in another. A waiver of immunity requires the State to consent to be sued and that such consent be expressed through "clear and unambiguous" language. Taylor, 106 S.W.3d at 695-96. "Clear and unambiguous" waiver language is not present here.
Turning to the third aid mentioned in Taylor, no provision in Chapter 260A requires HHSC or any other state agency to be joined in litigation involving claims brought under Section 260A.014. The lack of such a provision is an indication that the Legislature did not intend to waive immunity under this aid. Id. at 701. The fourth aid also points to immunity. There is nothing in Chapter 260A that limits plaintiffs' recovery of damages. The Texas Supreme Court has stated that the ability to recover exemplary damages under the statute makes it less likely waiver was intended. Id. at 702. Here, Section 260A.014 allows for recovery of exemplary damages. Tex. Health & Safety Code § 260A.014(c)(2). Paired with the lack of a recovery limit, the ability to recover exemplary damages indicates that the Legislature did not intend to waive sovereign immunity for this claim.
Finally, Navarro argues generally that the legislative intent behind Chapter
260A to protect residents of facilities from abuse, neglect, and exploitation would be undermined if HHSC is immune from claims under Section 260A.014. But Navarro provides no textual support that the Legislature intended claims under Chapter 260A to be brought against state entities. To discern whether the Legislature intended waiver, Navarro must either show (1) express language waiving immunity for claims brought under Section 260A.014 or, in the absence of such language, (2) utilize the four interpretative aids to determine the Legislature clearly and unambiguously waived immunity. See Texas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012) ("[Legislative] intent is drawn from the plain meaning of the words chosen by the Legislature when it is possible to do so . . . ."); Taylor, 106 S.W.3d at 697-98 (listing the four interpretative aids to discern legislative intent of waiver absent express waiver language). Navarro has done neither. We are not free to rewrite the statute to include a sovereign immunity waiver that the Legislature has not created.
Notwithstanding this point, state employees are not without recourse if they are terminated for reporting any legal violations committed by a state agency. They may still seek relief against wrongful termination under the Texas Whistleblower Act if they report such conduct to an appropriate law enforcement authority. Tex. Gov't Code § 554.002(a) (stating a state entity "may not suspend or terminate the employment of . . . a public employee who in good faith reports a violation of law by the employing governmental entity . . . to an appropriate law enforcement authority."). But Navarro's pleadings never allege she did so. In fact, the parties do not dispute that Navarro failed to report any of the alleged violations to "an appropriate law enforcement authority" as contemplated under the Texas Whistleblower Act. Id.
For these reasons, we hold that Navarro has failed to meet her burden to establish that the trial court had subject matter jurisdiction over her claim under Section 260A.014 of the Texas Health & Safety Code against HHSC.
Conclusion
We reverse the trial court's order denying HHSC's plea to the jurisdiction, render judgment for HHSC that the trial court lacked subject matter jurisdiction over Navarro's claim under Section 260A.014 of the Texas Health & Safety Code, and dismiss Navarro's claim with prejudice.