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Administrative/Government Law Click here for the full text of this decision FACTS:Christopher Lawson, a Harris County jailer, was fired on May 19, 2000. His termination was upheld on appeal to the county sheriff. He then appealed to the Civil Service Commission, but while the appeal was pending, he filed a Whistleblower lawsuit against the county, alleging that he was fired due to concerns he expressed to his superiors. In April 2001, the administrative agency upheld the termination. In January 2002, the trial court denied the county’s plea to the jurisdiction, which was based on its assertion that Lawson had not exhausted all applicable grievance procedures before filing his lawsuit. HOLDING:Affirmed. The court first describes the origins of the Texas Whistleblower Act, and notes that it waives governmental immunity only if the petitioner has fulfilled the prerequisites of the statute. Without the prerequisites, there is not immunity; without immunity, the court has no jurisdiction. The court points out that the 1995 Legislature amended �554.006 of the act that “before suing under this chapter,” an employee “must initiate action under the grievance or appeal procedures of the employing state or local government entity relating to suspension or termination of employment or adverse personnel action.” Subsection (d) adds that after waiting 60 days for a final decision from an administrative agency, the employee “may elect” to “exhaust the applicable procedures” or”terminate [the] procedures.” Whistleblower plaintiffs have the choice of exhausting administrative procedures or, after waiting 60 days for a final decision, filing a lawsuit. The court holds “that a public employee, as statutory prerequisites to filing a Whistleblower lawsuit, must (1) timely initiate the governmental entity’s grievance or appeal procedures and, then, (2) give the governmental entity at least 60 days to reach a final decision on the grievance or appeal.” In University of Houston System v. Lubertino, 95 S.W.3d 423 (Tex. App. Houston [1st Dist.] 2002, no pet.), the court dismissed a plaintiff’s lawsuit for lack of jurisdiction because the plaintiff attempted to pursue her grievance and lawsuit simultaneously; she had to elect one or the other, the court held then. The court, en banc, now overrules Lubertino, ruling “that a public employee’s continued participation in a governmental entity’s grievance or appeal procedures, after the employee has timely initiated his grievance, waited 60 days for a final decision, and timely filed suit, does not deprive a trial court of subject-matter jurisdiction over the case.” OPINION:Jennings, J.; en banc. Dissenting opinion by Alcala, J., joined by Taft, Keyes and Higley, JJ.

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