Discovery rule fact question precludes court from granting City’s Plea to Jurisdiction in Whistleblower case


City of Houston v. Robert A. Smith, 01-13-00241-CV (Tex. App. – Houston [1st Dist.], February 25, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Whistleblower Act case where the question was when to start the clock on initiating a grievance procedure after a transfer. The Houston Court of Appeals affirmed the denial and held fact questions precluded granting the plea.

Smith was an employee of the Houston Police Department (“HPD”) for 26 years. As acting administrator of the ID division he became aware of various alleged errors and violations of law of a third party that the HPD had hired to handle certain aspects of the fingerprint identification process and reported his concerns to his superiors. Ten months later, Smith was reassigned to the Property Division.  Smith was told the transfer was temporary.  Smith initiated the grievance procedure 56 days after he signed a permanent transfer form 6 months later. The City asserted its grievance procedure was to report violations within 90 days, but the dates should be measured from the time in 2010 when he was originally notified of his reassignment.

The court first determined that initiating a grievance procedure is jurisdictional after the 2005 legislative amendments under the Texas Code Construction Act. So the City’s arguments were properly raised in a plea.  The sole remaining issue was whether Smith was required to grieve within 90 days of his reassignment in November 2010, or from May 27, 2011, the date Smith signed a form acknowledging that the transfer was permanent. The court determined in this case a fact question exists regarding when Smith could have reasonably understood the transfer was permanent, thereby taking advantage of the discovery rule under the Whistleblower Act.

If you would like to read this opinion click here. Panel: Chief Justice Radack and Justices Bland and Huddle. Opinion by Justice Huddle. The attorney listed for the Plaintiff is Lloyd Krell.   The attorneys listed for the City are John B. Wallace, Henry Carnaby, and Natalie Gianna Deluca.

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