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Unpublished Paper
Texas Appellate Courts Are Likely to Find Waivers of Sovereign Immunity of State Agencies in Anti-Retaliation Claims Under the State Applications Act
ExpressO (2012)
  • Tri T Truong, Texas State University - San Marcos
Abstract
The State of Texas, its agencies, and political subdivisions enjoy immunity from suit and liability unless the Texas Legislature (“Legislature”) expressly waives immunity. When an anti-retaliation claim is filed against a state agency, that agency does not have the same protection under Texas law to invoke sovereign immunity as does a municipality or other governmental subdivisions, even though the two governmental entities are governed by similar statutes—the State Applications Act (“Act”) and the Political Subdivisions Law (“PSL”), respectively. This paper focuses on four principal cases: Barfield, Fernandez, Norman, and Beltran. In 1995, the Barfield court decided that the election-of-remedies provision in the PSL evidenced a waiver of governmental immunity for anti-retaliation claims against political subdivisions. Again in 2000, the Fernandez court was convinced that the Legislature had intended to waive sovereign immunity for state agencies’ violations of the Anti-Retaliation Law under the Act. A year after Fernandez, the Legislature enacted the Code Construction Act (“CCA”), which requires a statute to contain clear and unambiguous language in order to waive sovereign immunity. In 2005, the Texas Supreme Court decided, in the Norman case, that the PSL no longer clearly and unambiguously waives governmental immunity of the State’s political subdivisions because the Legislature added a non-waiver provision to the law. The court, however, did not overrule its precedent in the Barfield case, but rather stated that Barfield was not controlling because it preceded the statutory amendment. Subsequently, courts have declared that Norman is inapplicable to state agencies and its divisions (in the Beltran case) because they are subject to the governance of the Act. The courts also explained that the Texas Supreme Court has not overruled its decision in the Fernandez case since the addition of the Code Construction Act; therefore, the doctrine of stare decisis does not place the courts of appeals in the position to change or abrogate an established precedent. In conclusion, Texas appellate courts are likely to find waivers of sovereign immunity of state agencies in anti-retaliation claims under the State Applications Act until the Texas Legislature provides a clear non-waiver provision in the Act.
Keywords
  • sovereign immunity,
  • immunity from suit,
  • immunity from liability,
  • governmental immunity,
  • clear and unambiguous,
  • magic words,
  • magic language,
  • clear language,
  • anti-retaliation,
  • wrongful discharge,
  • labor code,
  • political subdivisions,
  • agencies,
  • norman,
  • beltran,
  • barfield,
  • fernandez
Disciplines
Publication Date
December 13, 2012
Citation Information
Tri T Truong. "Texas Appellate Courts Are Likely to Find Waivers of Sovereign Immunity of State Agencies in Anti-Retaliation Claims Under the State Applications Act" ExpressO (2012)
Available at: http://works.bepress.com/tri_truong/1/