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Click here for the full text of this decision FACTS:In August 2004, George Lueck sued the Texas Department of Transportation alleging that he was terminated from his position as assistant director of traffic analysis in retaliation for reporting what he believed to be a violation of federal law to his supervisor, the director of the planning and programming division for the department, James L. Randall. In January 2005, Lueck and the department filed their Agreed Discovery Control Plan and Docket Control Order, which was signed by the district court. This Docket Control Order stated that the department had until May 1, 2005, to file a plea to the jurisdiction. On Jan. 28, Lueck filed special exceptions requesting that the provision allowing the department to file a plea to the jurisdiction be stricken from the docket control order or, alternatively, that the district court hold that Lueck’s allegations were sufficient to establish the district court’s subject-matter jurisdiction over the case. On Feb. 23, Lueck filed a motion to dispose of the department’s plea to the jurisdiction without undue expense or burden. In the motion, Lueck argued that he was entitled to a hearing on his special exceptions prior to a hearing, if any, on the department’s forthcoming plea to the jurisdiction. Lueck requested that the district court order the department “to provide [Lueck] at least 90 days notice before its plea to the jurisdiction, once filed, is set for a hearing.” After considering the motion, the district court ordered the following changes to the Docket Control Order: “1. June 10, 2005. Deadline for filing plea to the jurisdiction. 2. July 18, 2005. Hearing on the Plea to the Jurisdiction [scheduled] at 2 p.m. 3. [Lueck's] special exceptions shall be heard before the Hearing on the Plea to the Jurisdiction. 4. If the special exceptions are granted, then the Defendants shall have an opportunity to amend their plea to the jurisdiction and Hearing on the plea to the jurisdiction shall be continued to allow Defendants the opportunity to amend their plea, if the special exceptions are granted.” On April 28, Lueck filed a motion for partial summary judgment “requesting the Court’s determination that it has jurisdiction of this case, based on the legally sufficient allegations made by [Lueck] under the”whistleblower’ statute.” In response, the department filed a motion for continuance before the hearing on Lueck’s motion for partial summary judgment, asking the district court to uphold jurisdiction as a matter of law without a further hearing. On May 6, the district court held a hearing on the department’s motion to continue, at which the department contended that any hearing on Lueck’s motion for partial summary judgment should be held at the same time as the hearing on the department’s plea to the jurisdiction. The district court granted the department’s motion to continue and further ordered that the hearing on Lueck’s motion for partial summary judgment be held on the same day as the hearing on the department’s plea to the jurisdiction. On June 8, the department filed its plea to the jurisdiction. In the plea, the department asserted sovereign immunity from suit and liability with regard to Lueck’s claim. The department further asserted that because it was challenging the existence of certain jurisdictional facts, it was entitled to an evidentiary hearing pursuant to the supreme court’s holding in Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). The department insisted that it would demonstrate at the hearing that sovereign immunity had not been waived because Lueck 1. did not make a good faith report of a violation of law and 2. did not have a good faith belief that he was reporting a violation of law to an appropriate law enforcement authority, as required by section 554.002(a) of the Whistleblower Act. On June 30, Lueck filed his second amended special exceptions and motion to dismiss the department’s plea to the jurisdiction. Lueck argued that the elements of a whistleblower claim found in �554.002 of the Whistleblower Act are not jurisdictional facts necessary to waive sovereign immunity. Lueck maintained that under �554.0035, entitled “Waiver of Immunity,” “[a] public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter.” Lueck argued that the department was incorrectly characterizing the elements of a whistleblower claim as jurisdictional facts necessary to waive sovereign immunity under �554.0035. Lueck maintained that he need only allege a violation of the Whistleblower Act to be entitled to sue the department. Therefore, he insisted that the department was not entitled to a hearing on its plea to the jurisdiction because it was merely challenging the merits of his claim. The district court held a hearing on Lueck’s second amended special exceptions and motion to dismiss on July 7. At the hearing, the district court acknowledged that granting Lueck’s motion would be equivalent to denying the department’s plea to the jurisdiction. On July 8, the district court granted Lueck’s motion to dismiss the department’s plea to the jurisdiction. This interlocutory appeal followed. HOLDING:The court affirms the district court’s order dismissing the department’s plea to the jurisdiction. The department claims that the Texas Supreme Court’s holding in Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004), requires a trial court to hold an evidentiary hearing any time a governmental entity’s plea to the jurisdiction challenges the existence of jurisdictional facts. While the court agrees that Miranda authorizes the district court to consider evidence if necessary to resolve a jurisdictional issue, the court does not agree that a governmental entity is entitled to a hearing on its plea to the jurisdiction merely because it purports to challenge the existence of jurisdictional facts. The challenged facts must be jurisdictional. Only facts pertaining to 1. Lueck’s status as a public employee or 2. whether or not he adequately alleged a violation of the Whistleblower Act are jurisdictional facts relevant to whether �554.0035 waives the department’s sovereign immunity from suit. The department insists that Miranda overruled the supreme court’s prior ruling in Wichita Falls State Hospital v. Taylor, 106 S.W.3d 696 (Tex. 2003). and City of New Braunfels v. Allen, 132 S.W.3d 157 (Tex. App. – Austin 2004, no pet.). The court disagrees. It is undisputed that Lueck is a public employee and that he alleged a claim under the Whistleblower Act. Accordingly, Lueck’s pleadings affirmatively demonstrate the district court’s jurisdiction to hear the case. Therefore, the district court did not err by granting Lueck’s motion to dismiss the department’s plea to the jurisdiction. OPINION:Bea Ann Smith, J.; Smith, Patterson and Puryear, J.J.

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