Since underlying claims for Whistleblower’s Act violations waived immunity, County is not immune from alleged breach of settlement agreement

Travis County, Texas; and Sheriff Greg Hamilton, in his Official Capacity v. Rick Rogers, 03-14-00186-CV (Tex. App. – Austin, July 29, 2015)

This is an appeal from the denial of the County and Sheriff’s plea to the jurisdiction in a case alleging a breach of a settlement agreement in an employment-related dispute.

Rodgers was a patrol officer for the Sheriff. Rogers filed numerous complaints against the Sheriff and County asserting his observations of harassment, favoritism, and illegal activity by other deputies. Rodgers was later terminated and threatened suit. As part of a settlement agreement Rodgers was rehired as a Cadet Corrections Officer. The agreement stated he would not be discriminated against or treated worse because he previously filed complaints. Five years later Rodgers was refused a transfer request to the Patrol Division. He asserted the hiring board “graded him down” based on prohibited reasons under the agreement. The County Defendants filed a plea to the jurisdiction asserting sovereign immunity is not waived for settlement contracts. The trial court denied the plea and the County Defendants appealed.

Rodgers’ claims could have fallen under the waiver of sovereign immunity contained within the Texas Whistleblower’s Act. According to the County, filing a suit alleging facts meeting the elements of a claim under the Whistleblower Act is a statutory prerequisite to suit which Rogers failed to comply with since he never filed suit and did not complete the administrative prerequisites. However, at the time of the settlement the limitations period had not expired and Rodgers could have completed the administrative process, but for his settlement. Citing the plurality opinion in the Texas Supreme Court case of Texas A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518  (Tex. 2002), the court held when “a governmental entity is exposed to suit because of a waiver of immunity, it cannot nullify that waiver by settling the claim with an agreement on which it cannot be sued.”  As a result, the denial of the plea was proper.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Pemberton, and Justice Field. Memorandum Opinion by Justice Puryear.  The attorneys listed for the Sheriff and County are Ms. Laurie R. Eiserloh and Mr. Leslie W. Dippel.  The attorney listed for Rogers is Mr. Philip Durst.

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