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The Texas Whistleblower Act does not require that the suit of an employee who blows the whistle on a governmental entity’s alleged violations of the law be tossed out of court permanently if it’s filed too early, the 14th Court of Appeals recently held. The Houston appeals court’s 6-3 ruling in University of Texas Medical Branch at Galveston v. Barrett conflicts with decisions by other intermediate appellate courts in the state, including a 2000 ruling by the 4th Court of Appeals in San Antonio. The 4th Court held in City of San Antonio v. Marin that a trial court is deprived of jurisdiction to hear a whistleblower suit filed before the expiration of a 60-day grievance period established by Texas Government Code � 554.006. The grievance period was created to give a governmental entity notice of an employee’s complaints and time to investigate before the employee files a suit. A provision in the Whistleblower Act, Government Code � 554.0035, provides a limited waiver of sovereign immunity. At issue in the UTMB case, decided by an en banc 14th Court on July 31, is the consequence of not waiting 60 days, after filing a grievance, to sue a governmental entity. Dr. Kevin Barrett, an emergency room physician, sued UTMB only 27 days after filing a grievance with regard to his termination, the 14th Court’s opinion said. Chief Justice Scott Brister, writing for the 14th Court majority, said the act does not specify what penalty applies to suits filed prematurely and suggested a remedy in such cases. Like mandatory notice requirements in the Texas Deceptive Trade Practices Act and the Medical Liability and Insurance Improvement Act, noncompliance with the 60-day waiting period established for suits brought under the Whistleblower Act requires abatement instead of dismissal “when the claimant jumps the gun,” according to the opinion. “Everyone agrees the purpose of the Whistleblower Act’s 60-day waiting period is to encourage parties to resolve disputes short of litigation. Abatement ensures the parties have that window of opportunity. Dismissal merely ensures they go away, usually permanently, as the act’s very short limitations deadlines will pass before most jurisdictional pleas can be filed and heard,” Brister wrote. Mark W. Stevens, a Galveston solo who represents the whistleblower, Barrett, calls the ruling sensible. “If the state feels any heartburn about somebody filing too soon, it can abate. That strikes me as a perfectly sensible way to do this,” Stevens says. “There is a sense of justice to the majority ruling,” says Charles W. “Rocky” Rhodes, a South Texas College of Law professor who teaches civil and appellate law. But Justice John S. Anderson said in a dissenting opinion that the Whistleblower Act doesn’t authorize abatement. “This court should not inject ‘judicial inspiration’ to achieve even a laudable result unavailable under a literal reading of the act. If abatement is proper for premature suits under that act, it is up to the Legislature, not this court, to change the law,” Anderson wrote. Justices Charles Seymore and Leslie Brock Yates joined Anderson in the dissent. The 14th Court considered the case on rehearing en banc after setting aside a December 2002 opinion by a three-justice panel, which decided 2-1 that the trial court should have dismissed the case for lack of jurisdiction because of the premature filing. Anderson wrote the panel’s opinion in which he was joined by Justice Kem Frost; Brister dissented. Because the majority didn’t identify a conflict in the 14th Court’s jurisprudence regarding the Whistleblower Act or articulate extraordinary circumstances requiring full court review, “en banc review is not warranted here,” Anderson wrote in dissent. The case is expected to end up at the Texas Supreme Court because it creates a conflict among the intermediate appellate courts and deals with sovereign immunity — an issue that has attracted much of the high court’s attention in recent years. SOVEREIGN IMMUNITY WAIVER? “This case has all the hallmarks of a case the Supreme Court would be interested in taking,” Rhodes says. Rhodes says that more and more of the Supreme Court’s caseload deals with interpreting statutes. Because the 14th Court’s decision in University of Texas Medical Branch conflicts with other Texas courts of appeals in interpreting a statutory provision, the Supreme Court is likely to want to review it, he says. Charles “Chuck” Herring, a partner in Austin’s Herring & Irwin, says the split among the intermediate appellate courts concerns an issue of importance to whistleblower litigation in Texas. “It is not unusual for terminated employees to come to lawyers after not having complied specifically with the grievance procedures. Clients and lawyers need to know the effect of such noncompliance,” Herring says. Mike Godfrey, general counsel for the University of Texas System, says UT and the Texas Office of the Attorney General are evaluating the opinion, but no decision has been made with regard to an appeal. “It’s being given very careful consideration,” Godfrey says. Tom Kelley, spokesman for AG’s office, declines comment. Godfrey says from the UT System’s point of view, the Legislature provided a waiver of sovereign immunity in whistleblower cases under strict standards. One of those standards, he says, is that a state agency is to be given sufficient time to investigate an employee’s allegations before a suit is filed. Stevens alleges that, in this case, the state waited until right before a trial was scheduled to file a plea to the jurisdiction citing Barrett’s failure to wait the full 60 days to sue. When the state raised the jurisdictional issue, Stevens says, the suit was 5 years old and already had been appealed once to the 14th Court. In 1999, a panel of the 14th Court reversed a summary judgment that Galveston’s 122nd District Court had granted UTMB on Barrett’s whistleblower and equitable-relief claims. In an opinion written by Justice J. Harvey Hudson, the panel said the Whistleblower Act requires a plaintiff to initiate an administrative action, not to exhaust all his remedies. The panel, which also consisted of then-Justice Maurice Amidei, who is no longer on the court, and former 14th Court Senior Justice Joe L. Draughn, sitting by assignment, held that Barrett “initiated action under [UTMB's] appeals procedure, albeit imperfectly.” Stevens says the state should not be able to “lie behind the log five years” and then spring the jurisdictional issue in a second interlocutory appeal. “That doesn’t matter,” Godfrey says. “If a court does not have jurisdiction to hear a case, you may raise that issue at any time.” Barrett, an ER physician at John Sealy Hospital in Galveston, alleged in his brief to the 14th Court for the first appeal that in July 1995 he received a letter terminating his faculty and clinical appointments to UTMB after he complained that UTMB engaged in “financial triage” in determining which emergency patients would be the top priority. In the brief, Barrett alleged that UTMB directed the ER staff, as part of the facility’s managed care efforts, to first treat patients with insurance, “leaving the indigent to suffer in the waiting room.” At about the time Barrett questioned the policy, his supervisor began to circulate complaints about Barrett’s “temperament,” Barrett alleged in his brief. Godfrey denies Barrett’s allegations: “We conclude that UTMB has not violated any standard of care.”

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