State of Texas and TxDoT v. Lueck (Tex. 2009),
No. 06-1034 290 S.W.3d 876 (Tex. Jun. 26, 2009)(Green)(Whistleblower Act claim dismissed on the pleadings,
plea to the jurisdiction in lieu of special exceptions or summary judgment)
THE GIST: We hold that, because Lueck’s e-mail report only warned of regulatory non-
compliance, not a violation of law, and because an agency supervisor is not an
appropriate law enforcement authority to whom a report should be made, Lueck’s
allegation affirmatively negates the court’s subject-matter jurisdiction over the cause. The
State’s sovereign immunity is not waived, and thus, we reverse the court of appeals’
judgment and dismiss the case for lack of subject-matter jurisdiction.
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK;
from Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06)
motion to dismiss denied
The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction.
Justice Green delivered the opinion of the Court. [16-page opinion in pdf]
View Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009)
SUBSEQUENT CASES:
UT Southwestern Med. Ctr. at Dallas v. Gentillello, MD, No. 08-0696 (Tex. Dec. 18, 2009)(per curiam)
(Whistleblower case remanded in light of decision, holding in State v. Lueck)
═══════════════════════════════════════════════════════════════════════
State v. Lueck, 290 S.W.3d 876 (Tex. 2009)
═══════════════════════════════════════════════════════════════════════
Argued November 12, 2008
Justice Green delivered the opinion of the Court.
Under the Texas Whistleblower Act, sovereign immunity is waived when a public employee alleges a
violation of Chapter 554 of the Government Code. Tex. Gov’t Code § 554.0035. A violation under
Chapter 554 occurs when a governmental entity retaliates against a public employee for making a
good-faith report of a violation of law to an appropriate law enforcement authority. Id. § 554.002(a).
George Lueck was fired from the Texas Department of Transportation (TxDOT) after he sent an e-mail
to the director of the Transportation Planning and Programming Division, reporting what he believed to
be violations of state and federal law. Lueck then sued the State of Texas and TxDOT under the
Whistleblower Act, alleging that he “was fired because of his good faith reports of TxDOT’s violation of
state and federal law.” We hold that, because Lueck’s e-mail report only warned of regulatory non-
compliance, not a violation of law, and because an agency supervisor is not an appropriate law
enforcement authority to whom a report should be made, Lueck’s allegation affirmatively negates the
court’s subject-matter jurisdiction over the cause. The State’s sovereign immunity is not waived, and
thus, we reverse the court of appeals’ judgment and dismiss the case for lack of subject-matter
jurisdiction.
I
A 1995 Federal Highway Administration report concluded that Texas’s system for collecting, analyzing,
and reporting traffic data violated federal standards. In 1999, the State contracted with a private vendor,
Cooper Consulting Company, to upgrade TxDOT’s computers and develop software for a replacement
system, called the Statewide Traffic Analysis and Reporting System (“STARS”). As the Assistant
Director of TxDOT’s Traffic Analysis Section, Lueck was responsible for the daily management of the
STARS program. Three years into the implementation project, the state auditor began investigating a
Cooper invoice that was left undisputed by TxDOT, charging the State $350,783. The charge was
initially described by Cooper as both a contingency fee and a “Project Work Plan,” but the vice
president for Cooper later admitted that a “Project Work Plan” was worth no more than $75,000.
TxDOT then requested a cost breakdown of the charge, which Cooper ultimately characterized as
“payment smoothing.”
Later, James Randall, the Director of the Transportation Planning and Programming Division at TxDOT,
suspended all work on the STARS project, and advised Cooper that the State would no longer pay for
work that was not previously approved by TxDOT. Cooper’s lawyers then sent a demand letter, notifying
TxDOT that Cooper would terminate its contract if the state failed to pay the disputed charge within
thirty days. A day after the letter was sent, Lueck sent Randall an e-mail entitled “STARS Contract.” In
the e-mail, Lueck informed Randall that the Traffic Division urged “an immediate positive response and
resolution” of Cooper’s demand letter. In numbered format, he outlined five reasons why he believed
TxDOT should resolve the dispute with Cooper, rather than cancel the contract. The e-mail warned that
without the STARS system, TxDOT “is not capable of handling this data and will, therefore, never be in
compliance.” Lueck recommended that Randall have the e-mail “readily available” when discussing the
implications of the Cooper demand letter with the TxDOT Administration and Contract Services
Division. Thereafter, TxDOT informed Cooper that it would not pay the payment smoothing charge and
accepted termination of Cooper’s contract. TxDOT then fired Lueck on the basis that Lueck’s attempt
to justify the $350,783 charge, despite his knowledge that the charge was only worth a fraction of that
cost, evidenced his own negligence and lack of trustworthiness.
Lueck sued the State and TxDOT (collectively, TxDOT) under the Whistleblower Act, alleging that his e-
mail to Randall constituted a report of a violation of law to an appropriate law enforcement authority
because it reported that the Department would violate federal and state law if TxDOT did not resolve
the dispute with Cooper. The e-mail report, which was attached to Lueck’s pleadings, specifically
warned that, without the STARS program, TxDOT’s existing software was “not capable of handling th[e]
data and will, therefore, never be in compliance.” TxDOT filed a plea to the jurisdiction, claiming that its
immunity was not waived because Lueck did not make a good-faith report of a violation of law to an
appropriate law enforcement authority, as required by section 554.002(a) of the Whistleblower Act.
Lueck filed a second amended special exceptions and motion to dismiss the plea to the jurisdiction,
arguing that his allegations, alone, satisfied the unambiguous language of the Act’s immunity statute.
See Tex. Gov’t Code § 554.0035. In response, TxDOT argued that Lueck’s pleadings affirmatively
demonstrated that he did not allege a violation under the Act because the e-mail he sent did not report
an actual violation of the law, and his supervisor to whom he sent the e-mail report was not a law
enforcement authority. TxDOT claimed it was at least entitled to a hearing on its plea to the jurisdiction
because the court must consider relevant evidence when necessary to resolve jurisdictional issues. The
trial court granted Lueck’s motion to dismiss TxDOT’s plea to the jurisdiction, and TxDOT appealed.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (permitting appeal from interlocutory order that
denies a plea to the jurisdiction by a governmental unit). The court of appeals affirmed, reasoning that
“Lueck’s pleadings affirmatively demonstrate the district court’s jurisdiction to hear the case.” 212 S.W.
3d 630, 638. We disagree. A “violation under the Act” under section 554.0035 is not alleged if the
pleadings affirmatively demonstrate that the plaintiff did not make good-faith report of a violation of law
to an appropriate law enforcement authority. See Tex. Gov’t Code § 554.002(a). Lueck’s pleadings
affirmatively negate the trial court’s subject-matter jurisdiction because he did not report a violation of
law, and his supervisor is not a “law enforcement authority.” Id.
II
The State and other state agencies like TxDOT are immune from suit and liability in Texas unless the
Legislature expressly waives sovereign immunity. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.
W.3d 637, 641 (Tex. 2004); see also 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.”). A
statute waives immunity from suit, immunity from liability, or both. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W. 3d 217, 224 (Tex. 2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696–
97 (Tex. 2003). Immunity from suit is a jurisdictional question of whether the State has expressly
consented to suit. Taylor, 106 S.W.3d at 696. On the other hand, immunity from liability determines
whether the State has accepted liability even after it has consented to suit. Id. In some statutes,
immunity from suit and liability are co-extensive, whereby immunity from suit is waived to the extent of
liability. See, e.g., Tex. Civ. Prac. & Rem. Code § 101.025(a); Miranda, 133 S.W. 3d at 224 (“The Tort
Claims Act creates a unique statutory scheme in which the two immunities are co-extensive. . . .”).
Sovereign immunity from suit is properly asserted when the State files a plea to the jurisdiction.
Miranda, 133 S.W.3d at 225–26 (citing Hosner v. DeYoung, 1 Tex. 764, 769 (1847)). In contrast,
immunity from liability is an affirmative defense that cannot be raised by a plea to the jurisdiction. Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). However, when the facts
underlying the merits and subject-matter jurisdiction are intertwined, the State may assert sovereign
immunity from suit by a plea to the jurisdiction, even when the trial court must consider evidence
“necessary to resolve the jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
555 (Tex. 2000); see also, e.g., Miranda, 133 S.W.3d at 223–24; Tex. Dep’t of Criminal Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001). We have limited the use of a plea to the jurisdiction in these
circumstances by holding that such a plea may only be used to address jurisdictional facts. Tex. Dep’t
of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). Lueck, therefore, argues that Simons
compels dismissal of this appeal because TxDOT has not appealed jurisdictional facts, but rather, facts
involving the TxDOT’s liability under section 554.002(a), which Lueck claims cannot be asserted by a
plea to the jurisdiction. Therefore, as a threshold matter, the first issue is whether the elements of
section 554.002(a) constitute jurisdictional facts that can implicate the court’s subject-matter jurisdiction.
III
The immunity provision in the Whistleblower Act states:
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. Sovereign immunity is waived and abolished
to the extent of liability for the relief allowed under this chapter for a violation of this chapter.
Tex. Gov’t Code § 554.0035. The standard for a “violation of this chapter” appears in section 554.002
(a), which provides that the governmental entity “may not suspend or terminate the employment of, or
take other adverse personnel action against, a public employee who in good faith reports a violation of
law by the employing governmental entity or another public employee to an appropriate law
enforcement authority.” Id. § 554.002(a). Lueck maintains that section 554.002(a) contains non-
jurisdictional elements that speak to the underlying merits of the claim, and therefore, cannot be
considered when determining jurisdiction. Lueck argues that requiring his pleadings, alone, to satisfy
the elements of section 554.002(a) would unnecessarily compel him to prove up his case before the
court assumed jurisdiction. The court of appeals agreed, and held that, while evidence pertaining to
elements of section 554.002(a) “may negate [TxDOT’s] liability under the Whistleblower Act, it would
not, even if true, affect the district court’s subject-matter jurisdiction to hear the case.” 212 S.W.3d at
637–38.
We agree with Lueck and the court of appeals that there are but two jurisdictional requirements under
section 554.0035. For the government’s immunity to be waived, the plaintiff must (1) be a public
employee, and (2) allege a violation of this chapter. Tex. Gov’t Code § 554.0035 (emphasis added).
But it necessarily follows from this language that Lueck must actually allege a violation of the Act for
there to be a waiver from suit. Therefore, the elements under section 554.002(a) must be considered in
order to ascertain what constitutes a violation, and whether that violation has actually been alleged. We
conclude that the elements of section 554.002(a) can be considered as jurisdictional facts, when it is
necessary to resolve whether a plaintiff has alleged a violation under the Act.
Lueck argues that the elements of 554.002(a) can never be considered as jurisdictional facts because
we are bound to follow the plain, unambiguous language of the immunity statute, which clearly indicates
that the Legislature intended to impose only two jurisdictional requirements on Lueck: that he be a
public employee and that he allege a violation under the Whistleblower Act. Id. § 554.0035; see also
State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (“[W]hen possible, we discern [legislative intent]
from the plain meaning of the words chosen.”). However, the second jurisdictional requirement in
section 554.0035 directs the inquiry to section 554.002(a) to determine if the plaintiff has actually
alleged a violation, rather than merely referenced the chapter. To hold that elements of section 554.002
(a) cannot be considered as part of this inquiry would obfuscate our previous decision in Miller, where
we held that “[m]ere reference to the . . . Act does not establish the state’s consent to be sued and thus
is not enough to confer jurisdiction on the trial court.” 51 S.W.3d at 587. In Miranda, we also considered
elements under the Texas Recreational Use statute to determine whether immunity was waived under
the Tort Claims Act. 133 S.W.3d at 225; see also Tex. Civ. Prac. & Rem. Code § 101.025(a). We see
no reason to depart from these decisions when the elements of section 554.002(a) are equally relevant
to the jurisdictional requirement that the plaintiff actually allege a violation of the Whistleblower Act.
Compare Tex. Gov’t Code § 554.0035, with Tex. Civ. Prac. & Rem. Code § 101.025(a).
Lueck claims that Miranda and Miller are not controlling because the Texas Tort Claims Act imposes a
limited waiver of immunity, whereby immunity from suit is only waived to the extent of liability. See
Miranda, 133 S.W.3d at 224 (“The Tort Claims Act creates a unique statutory scheme in which the two
immunities are co-extensive . . . .”). Likewise, the court of appeals declined to follow Miranda, finding
that the immunities are co-extensive under the Tort Claims Act, but not under the Whistleblower Act.
212 S.W.3d at 637. Because of this distinction, the court of appeals found that the section 554.002(a)
elements only resolve the extent of the TxDOT’s liability, not the jurisdictional issue concerning the State’
s consent to suit. Id. (“[F]acts pertaining to whether the Department may be found liable under the
Whistlebower Act are neither dispositive of, nor relevant to, our jurisdictional inquiry.”). TxDOT, on the
other hand, argues that Miranda and Miller are dispositive because the immunity statutes under the
Whistleblower Act and Tort Claims Act are substantively identical. Compare Tex. Gov’t Code §
554.0035, with Tex. Civ. Prac. & Rem. Code § 101.025(a). We will consider immunity statutes one-by-
one to determine whether immunity has been waived.
In Wichita State Hospital v. Taylor, we recognized that the first sentence of the Whistleblower Act
waives sovereign immunity from suit. 106 S.W.3d at 697 n.6. Although we also recognized that the
second sentence waives immunity from liability, id. at 697 n.5, this waiver simply limits judgments
against the State to “the extent of liability for the relief allowed under this chapter for a violation of this
chapter.” Tex. Gov’t Code § 554.0035. Since “[i]mmunity from liability protects the [S]tate from judgment
even if the Legislature has expressly consented to the suit,” see Jones, 8 S.W.3d at 638, this second
sentence not only waives immunity from liability, but also confines the scope of the State’s consent to
suit that was established in the first sentence. Thus, like the Tort Claims Act, the Whistleblower Act
imposes a limited waiver of immunity that allows consideration of the section 554.002(a) elements, to
the extent necessary in determining whether the claim falls within the jurisdictional confines of section
554.0035.
Lueck also claims that we are precluded from considering the section 554.002(a) elements as
jurisdictional facts under Dubai Petroleum Company v. Kazi. 12 S.W.3d 71, 76–77 (Tex. 2000) (holding
that statutory prerequisites to suits against a non-governmental entity were not jurisdictional). When we
applied Dubai to a case involving statutory prerequisites to suit against governmental entities, see Univ.
of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358–59, 62 (Tex. 2004), the Legislature
responded by passing a statute stating that, “[S]tatutory prerequisites to suit, including the provision of
notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov’t Code §
311.034. This case does not fall under section 311.034 of the Government Code because the elements
of section 554.002(a) are not statutory prerequisites to suit, but rather, elements of a statutory cause of
action in a suit against a governmental entity.[1] The issue before us today is whether these elements of
a statutory cause of action, like statutory prerequisites to suit, are requirements that can implicate the
merits of the underlying claim, as well as the jurisdictional inquiry of sovereign immunity from suit as a
threshold matter. We hold that the elements of section 554.002(a) can be considered to determine both
jurisdiction and liability. For example, we have previously rendered take-nothing judgments against
plaintiffs when they failed to prove elements of section 554.002(a). See Montgomery County v. Park,
246 S.W.3d 610, 612 (Tex. 2007) (holding plaintiff failed to prove that the County took “adverse
personnel action” against plaintiff, as required by section 554.002(a)); Tex. Dep’t of Transp. v.
Needham, 82 S.W.3d 314, 317 (Tex. 2002) (holding that no evidence supported a jury finding that the
plaintiff could have good-faith belief that TxDOT was an appropriate law enforcement authority); City of
Beaumont v. Bouillion, 896 S.W.2d 143, 146 (Tex. 1995) (holding that section 554.002(a) was not
satisfied because “as a matter of law, the Whistleblower Act is not implicated merely by reports made
to the press”). Lueck claims that, through these decisions, we implicitly recognized that elements in
section 554.002(a) cannot be considered as jurisdictional facts because these cases were decided on
the merits and not dismissed for lack of subject-matter jurisdiction. However, the issue of subject-matter
jurisdiction was not before us in any of these cases; indeed, the State did not file a plea to the
jurisdiction in Needham and Bouillion. See Needham, 82 S.W.3d at 317; Bouillion, 896 S.W.2d at 145.
Likewise, in Park, the State filed both a plea to the jurisdiction and motion for summary judgment, then
appealed the trial court’s denial of the motion for summary judgment. 246 S.W.3d at 613. Similar to this
case, we reversed the denial of a plea to the jurisdiction in City of Waco v. Lopez, holding that the
plaintiff could not bring a valid claim under the Whistleblower Act because a claim under the
Commission on Human Rights Act was plaintiff’s “exclusive state statutory remedy.” 259 S.W.3d 147,
156 (Tex. 2008). By reasoning that sovereign immunity was not waived because Lopez failed to plead
the more specific elements under the Commission on Human Rights Act, we implicitly rejected the
argument that simply alleging a violation under the Whistleblower Act is sufficient to confer subject-
matter jurisdiction on the trial court in suits against governmental entities. See id.
Our holding does not mean that Lueck must prove his claim in order to satisfy the jurisdictional hurdle.
Although the section 554.002(a) elements must be included within the pleadings so that the court can
determine whether they sufficiently allege a violation under the Act to fall within the section 554.0035
waiver, we have urged that the burden of proof with respect to these jurisdictional facts “does not
involve a significant inquiry into the substance of the claims.” Bland, 34 S.W.3d at 554; see also
Miranda, 133 S.W.3d at 235 (“[I]f a plea to the jurisdiction requires the trial court to wade deeply into the
lawsuit’s merits, it is not a valid plea.”) (Jefferson, C.J., dissenting). Allowing a plaintiff’s pleadings to
stand on bare allegations, alone, without allowing the State to challenge plaintiff’s compliance with the
immunity statute, would practically eliminate the use of pleas to the jurisdiction, which we have already
approved as the proper “procedural vehicle to challenge subject matter jurisdiction in trial courts for
over a century and a half.” See Miranda, 133 S.W.3d at 232. The Legislature has also approved of their
use by allowing for an appeal from an interlocutory order denying or granting a plea to the jurisdiction.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
Nor does our holding mean that the State must challenge the plaintiff’s pleadings through the use of a
plea to the jurisdiction. We have recognized that “[t]he absence of subject-matter jurisdiction may be
raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as a motion for
summary judgment.” Bland, 34 SW.3d at 554. Lueck claims that the TxDOT should have objected to his
pleadings through the use of special exceptions, and the court of appeals concluded that “a traditional
or no-evidence motion for summary judgment is the proper avenue for raising [TxDOT’s] concerns that
its evidence would negate two essential elements of Lueck’s [W]histleblower claim.” 212 S.W.3d at 638
n.4. While both of these options are available, and certainly not objectionable, we have never held that
the State is precluded from challenging pleadings in a plea to the jurisdiction when it could have done
so via special exceptions or motions for summary judgment. Since we disapproved of this position in
Miranda, 133 S.W.3d at 225–26 (citing Hosner, 1 Tex. at 769 (1847)), we decline to make an
exception for the Whistleblower Act’s immunity procedure. Because we have held that the 554.002(a)
elements are jurisdictional when necessary to ascertain whether plaintiff has adequately alleged a
violation of the chapter, we now turn to Lueck’s pleadings to consider whether they sufficiently waive the
TxDOT’s immunity.
IV
“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.” Miranda, 133 S.W.3d at 226;
see also Lopez, 259 S.W.3d at 150; Taylor, 106 S.W.3d at 696; Miller, 51 S.W.3d at 587 (quoting Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). “If the pleadings affirmatively
negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the
plaintiffs an opportunity to amend.” Miranda, 133 S.W.3d at 227. TxDOT argues that Lueck’s pleadings
do not affirmatively demonstrate jurisdiction because they are incurably defective.[2] In other words,
TxDOT points to uncontroverted allegations within Lueck’s pleadings, claiming that they affirmatively
negate jurisdiction because the e-mail sent to Randall did not report a violation of law to an appropriate
law enforcement authority. As for the report element, Lueck’s pleadings affirmatively negate the
existence of a reported violation. Lueck’s fifth amended petition states that Lueck “believed and
reported in good faith that if the Department did not pursue an immediate and positive resolution to
Cooper’s October 29, demand[,] the Department would violate federal and state law by failing to
remedy non-compliance with the federal and state reporting requirements.” This allegation merely
recites Lueck’s prediction of possible regulatory non- compliance. Such a regulatory non-compliance of
this kind does not equate to a violation of law under which a law enforcement authority regulates or
enforces within the meaning of the Whistleblower Act. See Tex. Gov’t. Code § 554.002(b). Further,
Lueck attached the e-mail report to his pleadings, and the only discernable violation in the report itself
states that TxDOT’s current system for reporting traffic data “is not capable of handling this data and
will, therefore, never be in compliance.” This references the violation reported in the 1995 Federal
Highway Administration report, which is only intended to call TxDOT’s attention to a previous, publicly-
known instance of regulatory non-compliance. At most, this reference to a previous violation of a federal
standard expresses disagreement with remedial measures taken by TxDOT after it was already
knowingly out of compliance. An internal policy recommendation of this kind is not a report of a violation
of law that the Whistleblower Act was designed to protect.
Even if this e-mail did report a violation of law, Lueck’s supervisor, Mr. Randall, is not an appropriate
law enforcement authority to whom such a report should be made. As the head of a division within
TxDOT, Randall could neither regulate nor enforce the law that Lueck alleged had been violated. See
Tex. Gov’t Code § 554.002(b)(1), (2) (providing that an appropriate law enforcement authority is “part of
a state or local governmental entity . . . that the employee in good faith believes is authorized to:
regulate under or enforce the law alleged to be violated in the report or; investigate or prosecute a
violation of criminal law”); Needham, 82 S.W.3d at 320 (holding that TxDOT was not appropriate law
enforcement authority to enforce laws related to driving while intoxicated, reasoning that “the particular
law the public employee reported violated is critical to the determination”). In fact, Lueck’s e-mail report
indicates that he knew Randall was not the proper authority within TxDOT to regulate the reported
violations because he recommended that Randall have his e-mail “readily available” when discussing
the implications of suspending the STARS program with other TxDOT divisions. Cf. Needham, 82 S.W.
3d at 320–21 (holding that an employer’s power to conduct internal investigative or disciplinary
procedures does not satisfy standard for appropriate law enforcement authority under the Act). This
conclusively establishes that Lueck could not have formed a good-faith belief that Randall was
authorized to enforce such violations. See id. (holding that claim may fall under Whistleblower Act if
employee formed a reasonable, good faith belief that report was made to an appropriate law
enforcement authority, given employee’s training and level of experience). Therefore, as a matter of law,
Lueck’s pleadings affirmatively demonstrate that he did not allege a violation under the Whistleblower
Act.[3] For these reasons, we reverse the court of appeals’ judgment and dismiss the cause for lack of
subject-matter jurisdiction.
_______________________________
Paul W. Green
Justice
OPINION DELIVERED: June 26, 2009
--------------------------------------------------------------------------------
[1] Lueck also argues that Igal v. Brightstar Information Technology Group, Inc. is controlling because
we held that elements of a statutory cause of action cannot be considered jurisdictional unless “the
language of the provision [or] the statutory scheme indicates” that the Legislature intended to address
jurisdiction. 250 S.W.3d 78, 84 (Tex. 2008). Igal involved the jurisdiction of an administrative agency,
not subject-matter jurisdiction in a case where the State asserts a plea to the jurisdiction, claiming that
its sovereign immunity is not waived. See id. at 81–82. However, even if Igal were to control statutes
waiving the State’s consent to suit, both the immunity provision, section 554.0035, and the statutory
scheme of the Whistleblower Act indicate that the Legislature intended for section 554.002(a) to be
considered as part of the jurisdictional inquiry because section 554.0035 references a “violation of the
chapter,” which is found in section 554.002(a).
[2] Lueck argues that the TxDOT waived the argument that his pleadings fail to affirmatively
demonstrate jurisdiction because it was undisputed before the trial court and court of appeals that
Lueck was a public employee and had alleged a violation of the Act. We disagree. In TxDOT’s Reply
Brief before the court of appeals, TxDOT argued that “Lueck has not alleged a violation of the Texas
Whistleblower Act and has not waived the State Defendants’ sovereign immunity under section
554.0035. . . .” TxDOT’s plea to the jurisdiction before the trial court also stated that one of the
problems with Lueck’s allegations is that the jurisdictional facts show that Lueck did not make a good-
faith report of a violation of law to an appropriate law enforcement authority. Since both of these
arguments made below dispute the proper allegation of a violation, TxDOT did not waive its right to
assert that the pleadings negated subject-matter jurisdiction.
[3] TxDOT also argues that the court of appeals erred in affirming the trial court’s denial of its plea to the
jurisdiction because the trial court abused its discretion when it declined to consider the relevant
jurisdictional evidence that TxDOT intended to present at its hearing on the plea to the jurisdiction.
TxDOT claimed that this evidence proved that Lueck did not allege a violation under the Act. See
Bland, 34 S.W.3d at 554 (holding that the trial court must consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues raised). Because we have held that Lueck’s
pleadings affirmatively negate the trial court’s jurisdiction as a matter of law, we need not consider
whether the trial court should have considered the TxDOT’s evidence at a hearing on its plea to the
jurisdiction. See Miranda, 133 S.W.3d at 227 (“When the consideration of a trial court’s subject matter
jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding
whether the jurisdictional determination should be made at a preliminary hearing or await a fuller
development of the case. . . .”).