Plea was properly denied due to need to develop record; further split in courts of appeal regarding jurisdictional nature of SOL continues

Beaumont Independent School District v. George W. Thomas Jr. 09-15-00029-CV (Tex. App. – Beaumont, January 28, 2016).

This is a Texas Whistle Blower Act case where the Ninth Court of Appeals affirmed in part and reversed in part the denial of a plea to the jurisdiction filed by the Beaumont Independent School District (“BISD”).

Thomas was an In School Suspension (“ISS”)  teacher at BISD.  The Principal had informed Thomas that he was on the payroll until the Summer but that is when the new directives were given. Thomas asserts he was told to not have ISS students sign in at the classroom, but he ignored that instruction and continued to require a sign-in sheet.  Thomas asserts he reported the order to require a different type of sign-in process to the Texas Education Agency (“TEA”) and local law enforcement as a form of attendance fraud. Thomas asserts in the fall term he was told he was not on the payroll for that term.  BISD filed a plea to the jurisdiction asserting Thomas does not hold a teaching certificate, was an employee at will, and it was entitled to immunity.  Further Thomas’ claims were barred by the statute of limitations. The trial court denied the plea and BISD appealed.

The court first held Thomas’ Sabine Pilot claims for wrongful-discharge are barred by governmental immunity.  Second, the Texas Whistleblower Act requires an employee seeking relief under the Whistleblower Act to file suit no later than the 90th day after the date on which the alleged violation either occurred or is discovered, however the employee must complete any grievance procedure first. “Reading sections 554.005 and 554.006 together, the time used by the plaintiff in following the grievance procedures is tolled and excluded from the ninety-day time limit to bring a suit.”  Therefore, Thomas did not file outside the statute of limitations. Further, the Court held the statute of limitations is an affirmative defense, not proper in a plea. [Comment, this is part of a split in the circuit’s involving an SOL being jurisdictional after a change in the legislature as outlined in DeMagaloni v. Bexar Cnty. Hosp. Dist., No. 04–12–00691–CV, 2013 WL 4829133, at *2 (Tex. App.–San Antonio Sept. 11, 2013, no pet.) (mem.op.) and  El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 151 (Tex .App.–El Paso 2010, no pet.)]   Finally, the court held that given the lack of a response from Thomas and his assertion he was not given notice of the plea hearing to know he should file a response, it is reasonable for the trial court to deny the plea to allow the record to be developed and a proper hearing notice provided. As a result, the plea should be granted in part and denied in part at this time.

If you would like to read this opinion click here. Chief Justice McKeithen, Justice Horton and Justice Johnson. Memorandum Opinion by Justice Johnson.  The attorneys listed for the BISD are Clay T. Grover and Caitlin Sewell.  The attorneys listed for Thomas are Kevin Laine and B. Adam Terrell.

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