Texas Supreme Court Update

By Rachael K. Jones

The following are summaries of selected opinions issued by the Supreme Court of Texas in April and May 2023. The summaries are an overview of selected aspects of the opinions; please review the entire opinions.

TEXAS WHISTLEBLOWER ACT: Employees did not expressly report any legal violations by employer, and thus were not protected under Act.

Tex. Health & Human Servs. Comm’n v. Pope, No. 20-0999 (Tex. May 5, 2023).

Two HHSC employees repeatedly raised concerns to HHSC’s Office of the Inspector General (OIG) and other enforcement agencies regarding violations of law by a private contractor, LeFleur Transportation. Specifically, they alleged that LeFleur had failed to comply with federal and state rules regarding the accompaniment of minors to medical appointments, and that LeFleur’s obligations to make “experience rebate” payments for profits above its profit cap were not being enforced. The two employees were subsequently fired.

The former employees sued HHSC under the Texas Whistleblower Act, claiming that their terminations were retaliatory.

HHSC filed a plea to the jurisdiction and motion for summary judgment, both of which were denied by the trial court. HHSC appealed, and the court of appeals affirmed the denial. HHSC filed a petition for review in the Texas Supreme Court, which was granted.

The Supreme Court found that the former employees’ claims were not covered under the Act, holding that the Act “protects only express reports to an appropriate law enforcement authority that unambiguously identify the employing governmental entity or another public employee as the violator.”

The Court noted that the Act excludes violations by independent contractors; that the report must be an express, “actual” report of violations by the governmental entity, not a report from which the entity’s wrongdoing must be implied; that disagreements with superiors’ discretionary choices regarding enforcement were not reports of violations of law; and that none of the reports identified an act or omission by HHSC that gave rise to a violation of law.

Accordingly, the Court found that the trial court erred in denying HHSC’s plea to the jurisdiction and motion for summary judgment. The Court reversed the court of appeals’s judgment and rendered judgment dismissing the suit.

STATUTE OF LIMITATIONS: Limitation period was not tolled during Texas resident’s temporary physical absence from state.

Ferrer v. Almanza, No. 21-0513 (Tex. Apr. 28, 2023).

Ferrer was injured in a car accident; Almanza was the driver of the other vehicle. Ferrer filed suit one year and 11 months after the wreck, incorrectly naming Almanza’s sister and father as defendants. Four months after filing (and three months after the limitations period had expired), Ferrer amended her petition to name Almanza as a defendant.

Almanza was a Texas resident at the time of the wreck, but left the state to attend college the following year. She nevertheless remained a Texas resident, as evidenced by the facts that she kept her Texas driver’s license and mailing address and returned to Texas during school breaks.

Almanza moved for summary judgment based on limitations. Ferrer argued that Texas Civil Practice & Remedies Code Section 16.063, which tolls limitations during a person’s “absence from this state,” applied during the periods that Almanza was away at college, and therefore her amended pertition was timely.

The trial court granted summary judgment in favor of Almanza, and the court of appeals affirmed.

Noting a split amongst the courts of appeals in the state as to whether Section 16.063 applies when a Texas resident is physically absent from Texas but otherwise subject to personal jurisdiction and amenable to service, the Texas Supreme Court granted Ferrer’s petition for review.

Relying on Ashley v. Hawkins, 239 S.W.3d 175, 179 (Tex. 2009), in which the Court held that the limitations period was not tolled when a defendant permanently left Texas (and thus was no longer considered a Texas resident) but remained subject to personal jurisdiction in Texas and amenable to service under the long-arm statute, the Court determined that Section 16.063 similarly does not apply to toll limitations when the defendant remains a Texas resident and temporarily leaves the state but remains subject to personal jurisdiction in Texas.

The Court found that, despite phyiscally being in another state, Almanza had remained under the personal jurisdiction of Texas courts and amenable to service of process throughout the limitations period, and thus was never “absent from this state” for purposes of Section 16.063.

The Court affirmed.

Rachael K. Jones is the editor-in-chief of Austin Lawyer. Her primary practice areas include civil appeals, contracts, and complex motion practice.