LEANNE JOHNSON, Justice.
This is the second petition for permissive appeal filed by Jefferson County, Texas ("the County") seeking appellate review of an interlocutory order that is not otherwise appealable. On October 2, 2014, we issued a memorandum opinion denying the first petition for permissive appeal filed by the County relating to the trial court's denial of the County's Rule 91a motion to dismiss.
Having reviewed the petition, the response, the orders and letter ruling, as well as the record before us at this time, we conclude the County has not demonstrated that the order it seeks to appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion. We dismiss the matter for want of jurisdiction. See Tex. R. App. P. 28.3(e)(4); Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d), (f); Swain, 2014 WL 4952280, at *1; see also generally GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex.App.-Beaumont 2014, pet. filed).
PETITION FOR PERMISSIVE APPEAL DISMISSED.
HOLLIS HORTON, Justice, concurring.
In my opinion, Jefferson County's request to appeal presents a question that involves a controlling question of law on which there is a substantial difference of opinion, so its request to appeal meets the standard that entitles it to gain interlocutory review. However, while I do not agree with the majority's explanation about why we should dismiss the County's request for permission to appeal, I agree that the request should be dismissed, as the County has not shown that the trial
The procedural history in the trial court is relevant to a proper disposition of the County's request. Because that history is not sufficiently explained in the opinion authored by the majority, I include it here.
Swain's Original Petition, the pleading on which the trial court based its decision to deny the County's motion to dismiss, alleges that the County violated "[section] 554.0035" of the Texas Labor Code. While the Labor Code has sections prohibiting many types of discriminatory actions against employees, the section Swain cited does not exist. See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006 & Supp. 2014) (referred to as the Texas Commission on Human Rights Act (CHRA); section 21.055 of the Act makes it unlawful for an employer to retaliate against an employee for opposing a discriminatory practice).
After answering, the County filed a Rule 91a motion to dismiss Swain's lawsuit, asserting that Swain alleged no claims that had a basis in law. See Tex. R. Civ. P. 91a.1 (authorizing the dismissal of baseless causes of action that have "no basis in law or fact"). According to the County's motion to dismiss, Swain's petition "is silent on the causes of action against [the County.]" In support of its argument that Swain's petition had no legal basis, the County pointed out that Swain's Original Petition wholly relied on a statute "that does not exist." Prior to the hearing on the County's Rule 91a motion to dismiss, Swain did not amend her petition.
The majority notes that we dismissed the County's prior attempt to review the trial court's decision on the County's Rule 91a motion. See Jefferson Cnty. v. Swain, No. 09-14-00347-CV, 2014 WL 4952280 (Tex.App.-Beaumont Oct. 2, 2014, no pet. h.) (mem. op.). And, the majority notes that the order which is the subject of the County's present request to appeal concerns a different order than the one we ruled on previously. But, the majority fails to note that the trial court stated a basis for its ruling in the order now at issue, a basis different from the explanation the trial court provided the parties in a letter intended to explain the reasons that led it to render the prior order. Unlike the trial court's prior order, the order now at issue concludes that Swain's Original Petition has no basis in law, as the trial court's order states that "the petition alleges as the sole ground of recovery a statutory cause of action which does not exist and therefore has no basis in law such that it cannot entitle plaintiff to any relief[.]" The majority appears to view the two orders as having no material difference, despite the trial court's effort to clarify the basis of its ruling so the County could gain our review in its attempt to pursue an interlocutory appeal.
However, even though the trial court found that Swain's claims, as alleged in her petition, had no basis in law, the trial court did not dismiss Swain's lawsuit. Instead, the trial court denied the motion, and took the position that the deficiencies in Swain's pleading could be addressed through special exceptions, a procedure governed by Rule 91 of the Texas Rules of Civil Procedure. In relying on Rule 91 to deny the County's motion, the trial court recognized that its construction of Rule 91a — allowing Swain to file amended pleadings to cure a pleading that failed to state a legal basis — is a ruling that is at odds with some of the language in Rule 91a.6, which requires trial courts to decide Rule 91a motions based solely on the pleadings before it at the hearing. See Tex. R. Civ. P. 91a.6. Given the trial court's determination that the pleading before it stated no legal claim and considering the provisions governing the
My difference of opinion with the majority on the question of the trial court's authority to allow a party to amend pleadings that state no legal basis for a claim is grounded on Rules 91a.5 and 91a.6 of the Texas Rules of Civil Procedure, rules that severely limit what a trial court may consider in deciding a Rule 91a motion. Rule 91a.5 provides: "In ruling on the [Rule 91a] motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b)."
Therefore, if the trial court had subject-matter jurisdiction over Swain's case when it denied the County's motion, I would be filing a dissent from the majority's decision to deny the County's request to appeal. But, based on the information presently before us, it does not appear the trial court possessed subject-matter jurisdiction over Swain's case when it ruled.
I must base my jurisdictional analysis on the limited information before us because the majority has refused to exercise the authority it has under the Government Code to determine whether subject-matter jurisdiction exists over the County's request to appeal.
Jefferson County's Rule 91a motion neither questioned whether the trial court could exercise jurisdiction over Swain's suit, nor has the County questioned our jurisdiction to act on the County's request for permission to appeal.
With respect to permissive appeals, the legislative grant of jurisdiction is found in Chapter 51 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a), (d) (West Supp. 2014). Even though no party has questioned whether subject-matter jurisdiction is present, a court's lack of subject-matter jurisdiction is not waived and may be raised at any time, even if raised for the first time on appeal. See Black, 392 S.W.3d at 95. Because the majority declines the County's request to appeal, the record is not fully developed regarding the questions that I have raised with the majority concerning whether subject-matter jurisdiction exists in Swain's case. Thus, my opinion regarding whether subject-matter jurisdiction exists is constrained by the limited information in the record before us.
Swain's pleadings allege that she reported complaints to a deputy, who on receiving her complaints, and with the assistance of a supervisor, fabricated charges against her "to discredit her." At some later date, a date that cannot be determined from Swain's pleadings, she was terminated. Thus, the complaints that Swain is making relate to how she was treated at work once she voiced complaints that she had about her direct supervisor with a deputy. Nevertheless, Swain's pleadings do not contain affirmative allegations of fact informing a court about what Swain claims she reported to the deputy or alerting the tribunal about what Swain's direct supervisor did to retaliate against her based on her report, so we are unable to determine factually what facts form the basis of her alleged unlawful discrimination and retaliation claims.
Additionally, Swain has not pled that the County waived its immunity from being sued, that she exhausted any administrative remedies that she was required to exhaust before filing suit, or that her claims are not subject to any exhaustion requirements. From a factual standpoint, knowing what is alleged to form the basis of Swain's claims is critical to determining whether Swain has a claim under the Texas Commission on Human Rights Act, as it provides the exclusive state statutory remedy for most retaliatory discharge cases involving county employees. See Tex. Lab. Code Ann. §§ 21.001-.556, § 21.055 (West 2006) (explaining that the statute makes it unlawful for an employer to retaliate "against a person who ... (1) opposes
If Swain's complaints about Jefferson County fall under the CHRA, and the claims she advanced in her petition appear to me to fall under that Act, she was required to plead and to show that she exhausted her administrative remedies before a court has subject-matter jurisdiction of her case. See Lopez, 259 S.W.3d at 155 (holding that the CHRA "provides the exclusive state statutory remedy for public employees alleging retaliation arising from activities protected under the CHRA"). Because Swain failed to plead that she had exhausted her remedies under the Act, the trial court did not have jurisdiction over the claims alleged in Swain's pleadings before the trial court at the hearing on the County's motion to dismiss. Id. at 154, 156.
In conclusion, in the absence of information showing otherwise, Swain's pleadings and the information before me indicate that Swain failed to "affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003) (citations omitted). Therefore, because it appears to me that the courts lack subject-matter jurisdiction over Swain's claims, as those claims are alleged in Swain's Original Petition, I concur in this Court's decision to dismiss the County's request for permission to appeal.