Justice Boyd delivered the opinion of the Court.
A former assistant district attorney filed this suit alleging that the county wrongfully terminated his employment because he refused his supervisor's order to withhold exculpatory evidence from a criminal defendant. The trial court dismissed the suit for lack of jurisdiction, and the court of appeals affirmed. Because we agree with those courts that governmental immunity bars the suit, we also affirm.
Eric Hillman served as an assistant district attorney in Nueces County for two years. While preparing to prosecute a defendant charged with intoxicated assault and leaving the scene of an accident, Hillman discovered and interviewed a witness who said she was with the defendant the night of the incident and he was not intoxicated. Because the police report did not identify this witness, Hillman told his supervisor that he needed to disclose the witness to the defendant's attorney. The supervisor disagreed and instructed Hillman not to disclose the witness. Believing that he was legally required to disclose the witness, Hillman called the State Bar Ethics Hotline and the Texas Center for Legal Ethics for advice. Both told him he should disclose the information.
Three days before the defendant's trial, the victim confirmed to Hillman that the witness had been present at the scene. Hillman relayed this information to his
Hillman sued the County, the District Attorney's Office, and then-District Attorney Mark Skurka, in his official capacity (collectively, the County), seeking actual damages for lost wages and benefits, mental anguish, pain and suffering, and loss of earning capacity, and exemplary damages. The County moved to dismiss on the ground that governmental immunity bars Hillman's claims. The trial court agreed and dismissed the case, and the court of appeals affirmed, 559 S.W.3d 183, 187 (Tex. App.-Corpus Christi-Edinburg 2017).
Sovereign immunity—usually called governmental immunity when referring to political subdivisions—protects governmental entities against suits and legal liabilities. City of Houston v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018); see also Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The County pleaded immunity from both suit and liability in this case, but only immunity from suit implicates the courts' jurisdiction. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). Because the trial court dismissed this case for lack of jurisdiction, we focus here solely on governmental immunity from suit. Because Hillman filed suit seeking money damages against a county and its department and official, governmental immunity bars this suit unless immunity has been waived. See City of Houston, 549 S.W.3d at 575.
Like every court of appeals that has addressed the issue,
Texas—"steadfastly an at-will employment state"—generally permits both employers and employees to terminate their relationship at any time for any reason unless they contractually agree otherwise. Ritchie v. Rupe, 443 S.W.3d 856, 885-86 (Tex. 2014). The law recognizes, however, a number of exceptions to this rule. One "very narrow exception to the employment-at-will doctrine," which we adopted in Sabine Pilot, prohibits employers from terminating at-will employees "for the sole reason that the employee refused to perform an illegal act." 687 S.W.2d at 735. An employer who terminates an employee solely for that reason is liable to the employee for all resulting "reasonable tort damages, including punitive damages." Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 661 (Tex. 2012).
Sabine Pilot involved claims against a private-sector employer, and this Court's very brief opinion never mentioned the duties or obligations of government employers. Noting that the Court did not expressly limit the exception to private employers or declare it inapplicable to government employers, Hillman argues that Sabine Pilot prohibits all employers—government as well as private—from terminating at-will employees solely for refusing to perform an illegal act. This argument reads too much into Sabine Pilot. Nothing in that opinion indicates anything regarding government employers. Because we simply did not consider or address whether the exception applies to government employers in Sabine Pilot, it provides no controlling principle on that issue here. See In re Tex. Dep't of Transp., 218 S.W.3d 74, 77 (Tex. 2007) ("Because we did not address the question in Wilson, we do not consider Wilson controlling.") (referring to Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 261 (Tex. 1994)).
Hillman suggests that even if Sabine Pilot did not resolve the issue, we can and should clarify today that the Sabine Pilot exception applies to government employers. See Sabine Pilot, 687 S.W.2d at 735 ("[T]his court is free to judicially amend a judicially created doctrine."). We have no problem holding that the exception applies to all Texas employers, in the sense that they all have a common-law-tort duty not to terminate at-will employees solely because the employee refuses to perform an illegal act. But holding that the Sabine Pilot exception applies to government employers does not help Hillman. Hillman's problem is not that the duty does not apply to government employers, but that immunity bars any suit for a government employer's breach of that duty.
Governmental immunity protects all governmental entities against suits and liabilities for their governmental actions, even when acting as employers. See City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007) (discussing the "heavy presumption in favor of immunity" for government actions). The legislature has provided a limited waiver of that immunity for certain tort and breach-of-contract actions.
Instead of creating or imposing duties, the statutes waive the immunity that would otherwise protect the government, removing the barrier that precludes suits or liability for breach of those preexisting common-law duties. So although we can say that the common-law-tort duty we recognized in Sabine Pilot applies to all Texas employers, Hillman still cannot pursue this suit for the County's alleged breach of that duty unless the legislature has waived the County's governmental immunity. Because Sabine Pilot did not involve a governmental defendant and did not address governmental immunity or its waiver, it does not support Hillman's argument that the trial court had jurisdiction over his claim.
More than fifty-five years ago, the United States Supreme Court held that the Constitution's due-process clause prohibits criminal prosecutors from suppressing material evidence that is "favorable to an accused." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Just over five years ago, the Texas legislature statutorily addressed "Brady violations" by passing the Michael Morton Act. See Act of May 16, 2013, 83d Leg., R.S., ch. 49 (S.B. 1611) (codified at TEX. CRIM. PROC. CODE § 39.14) (amending subsection (a) and adding subsections (c) through (n) to section 39.14). The Michael Morton Act expressly requires prosecutors to
TEX. CODE CRIM. PROC. § 39.14(h). Prosecutors must disclose such information whenever they discover it, whether "before, during, or after trial." Id. § 39.14(k).
Hillman contends that the Michael Morton Act required him to disclose the witness's information in the case he was prosecuting, so the County wrongfully terminated him for refusing to perform an illegal act. But even accepting these assertions as true,
To waive governmental immunity, a statute must use "clear and unambiguous language" expressing that intent. Tooke v. City of Mexia, 197 S.W.3d 325, 328-29 (Tex. 2006); see TEX. GOV'T CODE § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."). When deciding whether a statute clearly and unambiguously waives governmental immunity, we
Harris Cty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 844 (Tex. 2009).
Like the Sabine Pilot opinion, the Michael Morton Act does not address governmental immunity or waiver at all. None of its language waives immunity "without doubt" or even creates any ambiguity on the point. The Act does not require that the government be joined in any lawsuit or impose any limitation on the government's potential liability in such a suit. Implicating only the fifth consideration, Hillman argues that the Act necessarily must waive the County's immunity from his wrongful-termination suit because the Act's sole purpose is to require prosecutors to disclose exculpatory evidence. He contends that the Act would be "illusory" unless it waives immunity from Sabine Pilot claims, and finding no waiver "would defeat the sole purpose for passing the Michael Morton Act in the first place." As Hillman puts it, "A law making it a crime for a prosecutor to withhold evidence from the defense, but at the same time allowing the prosecutor's supervisor to fire him for refusing to do so is nonsensical and cannot possibly be what the legislature intended when it enacted the Michael Morton Act."
These arguments read too much into the Michael Morton Act. The Act serves obvious purposes separate and apart from addressing any wrongful-termination issues. It codifies and "supplements" prosecutors' constitutional obligations under Brady. Gerald S. Reamey, The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, or Not, 48 TEX. TECH L. REV. 893, 901, 904 (2016). It requires production of several items that "previously were not discoverable" in criminal cases, including "written witness statements, written communications between the State and its agents, and work product." Cynthia E. Hujar Orr & Robert G. Rodery, The Michael Morton Act: Minimizing Prosecutorial Misconduct, 46 ST. MARY'S L.J. 407, 412-13 (2015). And violations of the Act may constitute grounds for reversing a conviction. See, e.g., Ex parte Temple, No. WR-78,545-02, 2016 WL 6903758, at *1 & n.20 (Tex. Crim. App. Nov. 23, 2016) (not designated for publication) (granting post-conviction habeas relief for Brady violations) ("We believe that the Michael Morton Act was created to avoid problems exactly like those that arose in this case.").
Of course, the legislature could always do more to ensure that prosecutors
Nothing in the Michael Morton Act indicates a legislative intent to waive governmental immunity from a wrongful-termination suit under Sabine Pilot. No explicit language or even ambiguous language indicates such an intent. We hold that the Michael Morton Act does not waive the County's governmental immunity from this suit.
Alternatively, Hillman urges us to abolish the "ancient and antiquated" doctrine of governmental immunity altogether, or at least modify it to allow for Sabine Pilot claims against governmental entities. He notes that sovereign immunity developed and exists as a common-law doctrine, and "it remains the judiciary's responsibility to define the boundaries of the common-law doctrine and to determine under what circumstances sovereign immunity exists in the first instance." Reata, 197 S.W.3d at 375. But in fulfilling that responsibility, we must respect both our precedent and our limitations under the constitutional separation of powers.
Having existed for more than six hundred years, the governmental-immunity doctrine is "an established principle of jurisprudence in all civilized nations." Tooke, 197 S.W.3d at 331 (quoting Beers v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 15 S.Ct. 991 (1857)). We first recognized it as a principle of Texas law more than 170 years ago. See Hosner v. DeYoung, 1 Tex. 764 (1847) ("[N]o state can be sued in her own courts without her consent, and then only in the manner indicated by that consent."). Although the justifications for its existence have evolved through the years, we have steadfastly retained it in modern times precisely because it shields "the public from the costs and consequences of improvident actions of their governments," Tooke, 197 S.W.3d at 332, and ensures that the taxes the public pays are used "for their intended purposes," Reata, 197 S.W.3d at 375.
We are not blind to the truism that, "just as immunity is inherent to sovereignty, unfairness is inherent to immunity." City of Galveston v. State, 217 S.W.3d 466, 480 n.38 (Tex. 2007) (Willett, J., dissenting). But as the Court's majority explained in that case, we resolve that concern by deferring to the legislature, as the policy-making branch of government, "to decide whether and to what extent that immunity should be waived." Id. at 472-73. As important as Hillman's and his supporting amici's policy concerns may be, they do not justify discarding these fundamental principles of Texas law.
Although we defer to the legislature to waive immunity, the judicial branch retains the authority and responsibility to determine whether immunity exists in the first place, and to define its scope. As Hillman notes, we have recognized limitations on
The justifications for finding that immunity did not reach the counterclaims at issue in Reata and Harper are lacking here. The Reata limitation supports "fundamental fairness" while still fully protecting public resources because the counterclaim it permits against the government can serve only as an offset against any damages the government might recover; and to the extent the government expends litigation costs but makes no recovery, those expenses will have been made "for their intended purposes." See Reata, 197 S.W.3d at 375-76. In other words, the only public resources expended will be those the government chose to expend when it elected to interject itself in litigation. And because the Harper limitation only permits a recovery of attorney's fees against a governmental entity that initiates a claim under the TCPA, "rather than damages or some other uncapped sum," we reasoned in that case that the limitation "does not present any grave danger to the public fisc." Harper, 562 S.W.3d at ___.
Two important limitations in Reata and Harper are not present in Sabine Pilot claims. First, this is not a situation in which the governmental entity has chosen to "interject[ ] itself or ... engage in litigation to assert affirmative claims." Reata, 197 S.W.3d at 375; see Harper, 562 S.W.3d at ___. Governmental employers do not bring Sabine Pilot claims; they only defend against them. The government does not make the decision to expend resources in defending against these claims.
Second, Sabine Pilot claims sound in tort and thus allow for a broad range of damages, including punitive damages. See Safeshred, 365 S.W.3d at 657. In fact, Hillman seeks exemplary damages, as well as damages for past and future lost wages and benefits, mental anguish, pain and suffering, and loss of earning capacity. An award of such damages could most certainly disrupt the "fiscal planning of the governmental entity" in this case. Reata, 197 S.W.3d at 375.
We in no way discount the serious policy concerns that Hillman, his supporting amici, and today's concurring opinion express. Governmental immunity from Sabine Pilot claims eliminates one means by which the law could ensure that prosecutors disclose exculpatory evidence as Brady and the Michael Morton Act require. As the amici note, the Act has enjoyed broad, bipartisan support in the legislature, the public, and the press, and the legislature has further strengthened the Act in more recent legislative sessions. But to hold that governmental immunity does not apply to Sabine Pilot claims, we must trespass across the boundary between defining immunity's scope (a judicial task) and waiving it (a legislative task). The distinction between scope and waiver is "a fine one," and we must "be very hesitant to declare immunity nonexistent in any particular case," lest we use our authority to define the scope as "a ruse for avoiding the Legislature." City of Galveston, 217 S.W.3d at 471.
As we have repeatedly confirmed, "`it is the Legislature's sole province to waive or abrogate sovereign immunity.'" Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008)); Rusk, 392 S.W.3d at 93 (same in the tort-claims context); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012) (same in the employment context); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 201 n.49 (Tex. 2010). That the legislature has recently revised the Michael Morton Act to strengthen its protections illustrates its continuing awareness of the Act and its importance, as well as its willingness to take steps to improve it. Whether waiving immunity from Sabine Pilot claims should be the next step in that process is up to the legislature, and we must defer to it to "protect its policymaking function." Wasson, 489 S.W.3d at 432-33.
Finally, we note that the County suggests in its brief that, if we determine that immunity does not apply to Sabine Pilot claims, we should also hold that a Sabine Pilot violation is an ultra vires act, giving rise only to prospective injunctive relief and not to claims for damages or other "normal tort remedies." Picking up on this idea, several amici supporting Hillman urge us to allow an ultra vires claim if we determine that immunity does apply, and to remand the case to allow Hillman to pursue that claim. And today's concurring opinion suggests that Hillman "arguably"
"Sovereign immunity from suit defeats a trial court's subject matter jurisdiction." Miranda, 133 S.W.3d at 225. When, as here, a claim falls within the realm of governmental immunity, courts have no jurisdiction to hear the case unless immunity has been waived. We hold that neither Sabine Pilot nor the Michael Morton Act waives the County's governmental immunity from Hillman's wrongful-termination claim, and we defer to the legislature to decide whether such a waiver would be appropriate as a matter of public policy. We affirm the trial court's judgment granting the County's plea to the jurisdiction and dismissing the case.
Justice Guzman filed a concurring opinion, in which Justice Lehrmann and Justice Devine joined.
Justice Guzman filed a concurring opinion, in which Justice Lehrmann and Justice Devine joined.
Imagine being accused, charged, and convicted of bludgeoning your spouse to death. You are innocent but sentenced to life in prison, effectively orphaning your only child. Over the next 24 years, you wage an uphill battle to prove your innocence, eventually discovering that the prosecution held the keys to your jail cell before you ever set foot in it. Eye-witness testimony pointing the finger at someone else and DNA evidence that was never tested would have exculpated you if the prosecutor had not secreted the evidence from those who were constitutionally charged with defending you. Ultimately exonerated after nearly a quarter century in confinement, you walk free. The prosecutor—now a judge—is found in contempt of court for suppressing this evidence. Small comfort. Justice delayed is justice denied. But more than that, justice delayed is life denied.
While you were locked away for a crime you did not commit, you were denied your unalienable rights of life, liberty, and the pursuit of happiness. You lost your constitutional right to parent your child. To have his love and companionship. To shape who he is and how he became that way. Instead, your beautiful toddler is now a man struggling to reconnect with a person he doesn't know, can't remember as a parent, and spent years thinking was a vicious monster. And worse, the actual perpetrator of this heinous crime continued to walk the streets. Free to kill again.
Alas, this is not a hypothetical. This is the true story of Michael Morton.
Unfortunately, this is not an isolated incident. Official misconduct has been a factor in more than half of the nationally reported exonerations since 1989—nearly four score of which have occurred in Texas.
The tragic story of Michael Morton and Debra Baker compelled the Legislature to take affirmative steps to prevent wrongful convictions due to prosecutorial misconduct. In the legislative session following Morton's exoneration, the Texas Legislature unanimously passed the Michael Morton Act.
As this case sadly demonstrates, however, unacceptable gaps remain. When one good man refuses to stay silent, refuses to "just follow orders," and refuses to do the wrong thing under the misguided belief that it's for the greater good, he should not lose his job. While Hillman might have had
In 2013, Eric Hillman, an assistant district attorney in Nueces County, was assigned to prosecute David Sims for intoxication assault and leaving the scene of an accident.
Hillman immediately informed his supervisor that a new witness with exculpatory testimony had been located and he would be releasing that information to Sims's defense counsel. The supervisor demanded Hillman withhold the information, assuring him it was proper to do so.
Unconvinced, Hillman conducted an independent investigation of his ethical obligations, consulting with both the Texas Center for Legal Ethics and the State Bar of Texas Ethics Hotline. Both admonished him to disclose the information to defense counsel. Hillman therefore reported to his supervisor that he intended to turn over the evidence to the defense because withholding it would be unethical. According to Hillman, his supervisor responded, "Eric, you need to decide if you want to be a prosecutor or a defense attorney." A week after Hillman announced his intention to disclose the information, former District Attorney Mark Skurka summarily terminated Hillman's employment for refusing to "follow instructions."
Hillman sued the County, District Attorney Skurka, and the District Attorney's Office (collectively, the County) for wrongful termination, but his case was dismissed on a plea to the jurisdiction. Today the Court affirms, holding that (1) neither the common law nor the Morton Act permit Hillman to sue his governmental employer for damages and (2) Hillman has expressly waived an ultra vires claim.
I concur in today's judgment and join in much of the Court's reasoning. The gravamen of this case is governmental immunity: whether the County is immune from a wrongful-termination suit alleging a prosecutor was fired because he insisted on doing what the law requires. Under our immunity jurisprudence, this case is fairly straightforward, and the Court's analysis is sound. First, we did not abrogate governmental immunity in Sabine Pilot.
Taking Hillman's account as true, he was fired for endeavoring to fulfill constitutional and statutory obligations imposed on all prosecutors. By any measure of law and morality in a civilized country, that is wrongful termination. Those we entrust to pursue justice should not be put to the Hobson's choice of earning a living or doing the right thing. Cloaking governmental employers with absolute immunity in such circumstances erodes public confidence in the criminal justice system and undermines concerted legislative efforts to reform that system. By and large, prosecutors are honorable public servants committed to fairness in the administration of justice, but when unlawful practices are tolerated, encouraged, or rewarded with career advantages, others may be enticed to cross the line or may be cowed by consequences visited on those who resist. It's fair to assume that the Legislature did not envision such a consequence when
Both Brady and the Morton Act obligate prosecutors to disclose certain types of evidence to the defense as a function of due process and to stave off wrongful convictions by thwarting pernicious prosecutorial practices. Wrongful convictions, as numerous studies have shown, come at a significant cost to our society. Financial burdens on the taxpayers accumulate through "an appeal, an appellate reversal, a retrial, investigational efforts to trace the real offender, possible civil lawsuits, and compensatory payments."
On the other side of the coin, for every innocent person that sits in jail, a criminal roams free. Free to commit more crimes. If DNA-exoneration cases are any kind of indicator, the societal consequences of convicting the wrong person—however it happens—are devastating. For example, out of 325 DNA-exoneration cases from 1989 to 2014, 68 of the true perpetrators later committed an additional 142 violent crimes—including 77 rapes, 34 homicides, and 31 other violent crimes.
With such grave consequences, the best defense is a good offense. The Morton Act is a strong foundation, but more is required to ensure that those wielding power use it as the founders intended. Prosecutors are on the forefront of avoiding wrongful convictions and ameliorating the ensuing societal costs. Based on data complied by the National Registry of Exonerations, official misconduct ranks second among the top five factors contributing to exonerations, leading to over half of the 2,401 (and counting) exonerations since 1989.
While multiple external forces are aimed at ensuring accountability for misconduct—including professional discipline,
Brady violations are difficult to uncover because, by definition, they involve concealment of evidence in the prosecution's exclusive possession and control.
Absent legislative action, the best someone in Hillman's position could hope for is to seek prospective equitable relief under an ultra vires theory.
However, as a policy matter, I am dubious that a remedy limited to prospective equitable relief is strong enough to deter the egregious conduct alleged here. To be effective, the remedy must be proportional to the wrong. To my mind, the threat of other consequences, including monetary relief, would provide the external pressure required to motivate vigilance and self-policing. The Legislature is better suited, and constitutionally constituted, to weigh the policy interests that bear on whether to waive immunity (and to what extent),