City of LaPorte v. Barfield
In City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995), the Court held that both the 1981 and 1989 versions of the Political Subdivisions Law waived political subdivisions' immunity from liability for anti-retaliation violations. 898 S.W.2d at 296-98.
Section 3(a)(5) of the 1981 Political Subdivisions Law provided that "if the city provides by Charter or ordinance for ultimate access to the district court for wrongful discharge, the Anti-Retaliation Law is not applicable." Act of June 10, 1981, 67th Leg., R.S., ch 352, 3, sec. 3(a)(5), 1981 Tex. Gen. Laws 937, 937-38. By affording this choice to cities, we concluded that the Legislature must have intended to waive immunity:
Now assuming that the Legislature did not waive governmental immunity in the Anti-Retaliation Law, as we have already concluded, it is inconceivable that the Legislature intended to afford cities the option of either voluntarily waiving immunity by making a minimal remedy available by charter or ordinance, or suffering adoption of the Anti-Retaliation Law with no waiver of immunity. . . . Why would the Legislature give cities the option of voluntarily waiving immunity or being forced not to waive it? Barfield, 898 S.W.2d at 296.
The 1989 amendments deleted the election-of-recourse provision in section 3(a)(5), but they added an election-of-remedies provision prohibiting an employee from suing under both the Anti-Retaliation Law and the Whistleblower Act. See TEX. LAB. CODE 451.001 (Anti-Retaliation Law); TEX. GOV'T CODE 554.002 (Whistleblower Act). Section 3(d) states that "a person may not bring an action for wrongful discharge under both the Anti-Retaliation Law and the Whistleblower Act." Act of December 13, 1989, 71st Leg., 2d C.S., ch. 1 15.47, sec. 3(d), 1989 Tex. Gen. Laws 1, 113.
The Court also concluded that the Legislature had waived immunity by including this provision. Since immunity had clearly been waived for the Whistleblower Act, we reasoned that the Legislature must have intended to waive immunity for the Anti-Retaliation Law because "it would make little sense to require an employee to elect between an action barred by immunity and one not barred." Barfield, 898 S.W.2d at 298.
In Barfield, the Court concluded that section 3(a)(5) of the 1981 Political Subdivisions Law waived the immunity of political subdivisions only to the extent of providing reinstatement and back pay as remedies. 898 S.W.2d at 297. Since the 1989 Political Subdivisions Law did not indicate such a limited waiver, however, we concluded that the Legislature completely waived immunity in that law. Barfield, 898 S.W.2d at 298.
The Court held that this provision does not show a clear intent to waive immunity for anti-retaliation actions because the word "employer" nowhere appears in that statute. 898 S.W.2d at 298.
Specifically, we explained that Section 504.002(b) states that in applying the Anti-Retaliation Law, "employer" means "political subdivision".
As with the 1981 version of the Political Subdivisions Law, "political subdivision" is not equated with "person", which has always been the operative word of the Anti-Retaliation Law.
Absent this equation, it is not entirely clear whether the Legislature intended to prohibit political subdivisions from retaliatory discharge. Id.
The Legislature has also "adopted" the Anti-Retaliation Law and other statutes in the State Applications Act, which applies the Texas Workers' Compensation Act to state employees not covered by more specific provisions.
The State Applications Act and the Political Subdivisions Law originated and evolved in tandem.
Both were first enacted in 1973 as part of the same legislation revising or replacing prior enactments making workers compensation coverage applicable to various governmental entities and private employers.
Both were amended by the same bill passed in 1981 to "adopt" for the first time the Anti-Retaliation Law that had been enacted in 1971.
Both articles were again amended together in 1989 and recodified in 1993.