The Houston Fourteenth District Court of Appeals highlighted a split of authority in the courts of appeals regarding waiver of immunity in the Texas Whistleblower Act. In Galveston ISD v. Jaco, the Court considered the question of whether immunity from liability is coextensive with immunity from suit under the Whistleblower Act. The Court observed that the San Antonio Court of Appeals, the Amarillo Court of Appeals, and the Waco Court of appeals each have treated the elements of a whistleblower claim as jurisdictional. However, the Houston First Court of Appeals, the Austin Court of Appeals, the Dallas Court of Appeals, and the Corpus Christi Court of Appeals each have concluded that the elements of a claim are not jurisdictional. The Fourteenth Court of Appeals joined the latter group and held that waiver of immunity from suit is not dependent upon the merits of the claim. The Court went on to hold that the trial court had not erred in denying the school district’s plea to the jurisdiction. The Court’s opinion may be found at this link.
In light of the split of authority, this issue would seem to be ripe for resolution by the Texas Supreme Court. And it appears the supreme court may address this issue in State of Texas v. Lueck, No. 06-1034. The Court has granted the petition for review and this issue is one of two presented. The case was argued November12, 2008. Briefs in the case may be found at this link. The oral argument may be found at this link.