City of Round Rock Fire Chief v. Whiteaker - Concurrence

CONCURRING OPINION BY JUSTICE PATTERSON

City of Round Rock and Round Rock Fire Chief Larry Hodge v. Mark Whiteaker, No. (Tex.App.- Austin, Nov. 16, 2007)(Concurring Opinion on rehearingg by Justice Patterson) (Before Justices Patterson, Pemberton and Waldrop)


Go to ---> Majority opinion in City of Round Rock and Round Rock Fire Chief Larry Hodge v. Mark Whiteaker, No. (Tex.App.- Austin, Nov. 16, 2007)(Opinion on Rehearing by Justice Pemberton ) (firefighters, sovereign immunity, opportunity to amend)(Before Justices Patterson, Pemberton and Waldrop)

Appeal from 250th District Court of Travis County


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-06-003576, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING


C O N C U R R I N G O P I N I O N

On motion for rehearing, I reissue my original opinion without change. When deciding questions of jurisdiction, the element of necessity guards against the temptation to address the merits of the case or to issue advisory commentary.

I agree that Whiteaker's claim for retrospective monetary relief as currently plead is foreclosed by the supreme court's recent decision in City of Houston v. Williams, 216 S.W.3d 827 (Tex. 2007), and that, in light of Williams, decided after the trial court ruled on this matter, Whiteaker should be given an opportunity to replead. But the majority's analysis goes beyond the limits of the procedure established by the supreme court in Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).


When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the pleaders' intent. Id. at 226-27. We presume in favor of the trial court's jurisdiction unless lack of jurisdiction affirmatively appears on the face of the pleadings. Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989). If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226-27.


It is readily apparent from the face of the pleadings that, with the exception of his claim for retrospective monetary relief as currently pleaded, Whiteaker has alleged sufficient facts to demonstrate the trial court's jurisdiction. Accordingly, review of the evidence submitted by the City is unwarranted, and the trial court properly denied the City's plea to the jurisdiction. See id. at 227.


Moreover, given the supreme court's decision in Williams, Whiteaker's allegations do not affirmatively negate jurisdiction and, as the majority correctly concludes, he should be given the opportunity to replead. See id. at 226-27. The supreme court has since reaffirmed its conclusion that a plaintiff "deserves the opportunity to amend his pleadings if they can be cured." Texas A&M Univ. Sys. v. Koseoglu, 2007 Tex. LEXIS 838, *30 (Tex. Sept. 7, 2007).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed: November 16, 2007

Justice Waldrop disagrees on who may file complaint under Texas Labor Code - writes separate opinion in Texas Parks & Wildlife Dep't v. Dearing case

Texas Parks & Wildlife Department v. Milburn Dearing, Kenneth Head, and Mike Warren, Individually and on Behalf of All Others Similarly Situated, No. (Tex.App.- Austin, August 3, 2007)(Concurring Opinion by Justice Waldrop)(Before Chief Justice Law, Justices Pemberton and Waldrop)
See Majority opinion in Texas Parks & Wildlife Department vs. Dearing, Kenneth Head
Appeal from 200th District Court of Travis County

COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. GN102867, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING


CONCURRING OPINION BY JUSTICE ALAN WALDROP

I join the majority opinion except for that part of the opinion dealing with the single filing rule. Because I disagree that there is currently a basis for recognizing, in Texas, a single filing rule for the type of complaint at issue in this case, I concur in the majority's judgment, but write separately.

The majority concludes that the federal statutory structure for Title VII claims is similar enough to the Texas Labor Code that Texas courts should apply the single filing rule for the purposes of satisfying administrative exhaustion requirements in the context of class treatment of individual claims.

However, there is a critical distinction between the Texas and federal statutory schemes. Federal law provides that administrative exhaustion may be satisfied by a charge filed "by or on behalf of a person claiming to be aggrieved." 42 U.S.C.A. § 2000e-5(b) (West 2003) (emphasis added). Thus, a federal charge filed on behalf of a class of persons similarly situated can satisfy federal statutory exhaustion requirements and is consistent with the federal statutory structure.

The Texas statutory structure does not contain a similar provision. Under the current Texas statute, a charge must be filed by the person aggrieved or the "person's agent." See Tex. Lab. Code Ann. § 21.201 (West 2006). Thus, under current Texas law, administrative exhaustion is not satisfied by a filing merely "on behalf of" a person. The filing must be by the person or the person's agent. Other than the unsupported statements in Dearing I, (1) I am not aware of any authority that declares a plaintiff seeking to be named a class representative of a putative class to be the agent of unnamed class members. Even if a class is certified, the class representative serves as a representative member of the class, but he or she is not the agent of the unnamed class members. A class representative must only be a member of the class and must be adequate to represent the interests of the class. Class members neither have to approve of a class representative nor agree with him or her. They are free to opt-out of the class or opt-in and object every step of the way. The class member/class representative relationship is, in some ways, not entirely defined; however, it is not a principal/agent relationship unless class members make it so.

While it might seem efficient or reasonable from a policy standpoint to consider a single filing rule for the purposes of administrative exhaustion in the class certification context, Texas courts are not in a position to judicially incorporate such a rule into the labor code.

Administrative remedies and the requirements for exhausting those remedies are creatures of statute. The statutes govern how those requirements may be satisfied. The current Texas statutory scheme for exhaustion of administrative remedies for the type of claims at issue in this case requires that a charge be filed by the person aggrieved or the person's agent. It does not provide for a filing "on behalf of" the person aggrieved or by someone who is something like an agent or similar to an agent. A person seeking to be the class representative of a putative class is not an agent for unnamed class members--apparent, implied, or otherwise--and, therefore, under the Texas Labor Code, cannot satisfy exhaustion requirements on behalf of all other members of a class.

I would hold that the single filing rule is inconsistent with the current iteration of Texas Labor Code section 21.201 and should not be engrafted on the statutory administrative remedy structure by judicial decision. I would also hold that this Court's decision on this issue in Dearing I is clearly erroneous.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: August 3, 2007


1. Tex. Parks & Wildlife Dep't v. Dearing, 150 S.W.3d 452 (Tex. App.--Austin 2004, pet. denied), cert denied, 544 U.S. 960 (2005).