Texas Supreme Court holds 90-day statute of limitations is a jurisdictional prerequisite to filing suit under Texas Whistleblower Act

City of Madisonville, et al., v Sims, 18-1047 (Tex. April 17, 2020)

This is a Texas Whistleblower Act case where the Texas Supreme Court held the 90-day deadline for filing suit is jurisdictional.

David Sims was a police officer in the Madisonville Police Department. Sims received information that his boss, Sergeant Jeffrey Covington, planned to plant drugs in Covington’s ex-wife’s car to assist in his ongoing child-custody dispute. Sims and Covington had a bad history, both before and during Madisonville PD.  Sims told the Chief of Police, Charles May, but Chief May dismissed the information. Sims later discovered, by using an administrator access login, that Covington was compiling an “investigative file” on Sims presumably to have him fired. Sims was “dishonorably discharged” shortly afterwards for violating the Department’s computer-use policy. The dishonorable designation  was later changed to honorable by a SOAH administrative law judge.   Sims sued under the Texas Whistleblower Act after the SOAH determination (which was past the 90 day deadline to file suit). The City filed a plea to the jurisdiction, which was granted. The court of appeals reversed, holding the deadline was not jurisdictional. The City appealed.

Texas Government Code § 311.034 of the Code Construction Act makes statutory prerequisites to suit jurisdictional as to claims against governmental entities. The Texas Supreme Court has held “the term ‘statutory prerequisite’ refers to statutory provisions that are mandatory and must be accomplished prior to filing suit.”  When a statutory prerequisite to suit is not met, “whether administrative (such as filing a charge of discrimination) or procedural (such as timely filing a lawsuit),” the suit may be properly dismissed for lack of jurisdiction.  The Whistleblower Act clearly and unambiguously waives sovereign immunity to allow plaintiffs to obtain relief. But an employee with a Whistleblower Act claim must strictly abide by the procedural limitations set out in the Act to obtain relief, including the statute of limitations. The Act states the employee “must sue” within ninety days. The ninety-day filing deadline is thus a jurisdictional statutory prerequisite to suit.  The plea should have been granted.

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.