Travis County, Texas And Sheriff Greg Hamilton, in His Official Capacity v. Rick Rogers

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00186-CV

Travis County, Texas; and Sheriff Greg Hamilton, in his Official Capacity, Appellants v.

Rick Rogers, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-12-003897, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

CONCURRING OPINION

I join in the Court’s judgment, agreeing that, per Lawson,1 governmental immunity does not bar Rogers’s suit alleging the County breached its settlement agreement with him. But my reasoning differs somewhat from the Court’s opinion.

While the contemporary rationale for sovereign immunity (or its adjunct, governmental immunity) rests upon deference to legislative policy judgments regarding the expenditure of public resources,2 the doctrine itself is a creature of the common law, and it is the common law rather than statutes that ultimately governs whether such immunity applies in the first instance, as opposed to the legislative prerogative of whether and how it is waived.3 While the general common-law rule is that immunity shields government and its agents from suit and liability in the first instance, the Texas Supreme Court has recognized some exceptions to that rule, and Lawson illustrates one of those. Where the Legislature has chosen to waive immunity as to a cause of action against government, government settles the claim, and then government allegedly breaches the settlement agreement and tries to invoke immunity as a bar to any claims for breach, Lawson holds that the immunity that would ordinarily bar the claims for breach (aside from some sort of independent legislative waiver) does not apply.4 The essence of Lawson’s reasoning is that applying immunity in such instances would invert the doctrine’s own justifications by causing courts to thwart, rather than defer to, the legislative policy judgments reflected in the decision to waive immunity in the first place.5

Applying the Lawson rationale to this case, the dispositive considerations, in my view, are these: the Legislature has seen fit to waive immunity under the Whistleblower Act to permit a “public employee” (which Rogers undisputedly is) to bring suit for alleged violations of the Act (which Rogers undisputedly could have alleged), provided he first exhausts his employer’s grievance or appeal procedures (which Rogers undisputedly did) and files suit within the statutory “limitations” period (which the majority assumes without deciding to be jurisdictional, so I will do the same).6 Although Rogers had not yet filed suit at the time of settlement, the “limitations” period had not yet run and the record supports the reasonable inference that Rogers would have filed suit timely absent the settlement. Applying immunity to bar Rogers’s subsequent suit for alleged breach of the settlement agreement under these circumstances would thwart the Legislature’s policy judgments in waiving immunity under the Act in the first place and, in turn, the rationales that justify the immunity doctrine. Consequently, under Lawson, immunity should not bar Rogers’s suit.

The memorandum opinion in Neal7 does not warrant any contrary conclusion. The salient feature of that case was that the underlying claims that had been resolved by the settlement agreement on which Neal was attempting to sue for breach (alleged employment discrimination potentially actionable under chapter 21 of the Labor Code) were incurably barred by immunity because Neal had failed to exhaust her administrative remedies—a statutory prerequisite for suit—within the Legislature’s prescribed 180-day period for doing so.8 (It was in this sense and context that the Neal Court labeled Neal’s underlying immunity-barred job-discrimination claims as having “no adjudicative value in the court system,” and I do not perceive this phrase to have any further import in regard to Neal’s actual holding). Given that Neal’s underlying claims were immunity-barred, applying immunity to bar her subsequent suit for breach of the agreement that had nonetheless settled those claims did not thwart the Legislature’s policy judgments embodied in the manner in which it had waived immunity under chapter 21 as to the underlying claims—instead, immunity served to preserve and effectuate those policy judgments, and it was Neal’s suit for breach that would have circumvented and undermined the policies. Accordingly, Neal reached the correct conclusions that Lawson’s rationale did not apply and that Neal’s suit was barred by immunity.

With this understanding, I concur in the Court’s judgment.

__________________________________________ Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Field

Filed: July 29, 2015