The Texas Supreme Court held in Texas Central Appraisal District v. Diane Norman that, even though it had previously held in 1995 in City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995) that governmental immunity had been waived by the State for suits by employees for worker’s compensation retaliation, the State did not waive it. The holding was based on the fact that Chapter 504 of the Texas Labor Code had been amended after the holding in Barfield to read in Sec. 504.053(e) that nothing in the chapter waives sovereign immunity. It’s very complicated and I won’t explain all the details. Now there appears to be a ray of hope for the Texas Labor Code sec. 451 anti-retaliation statute still being applicable to state agencies.
In three recent court of appeals cases [Texas Dep’t of Aging & Disability Servs. v. Beltran, 350 S.W.3d 410, 414-15 (Tex. App.—El Paso 2011, pet. filed); Texas Office of the Comptroller of Pub. Accounts v. Saito, No. 05-10-00297-CV, 2012 Tex. App. LEXIS 5333, (Tex. App.—Dallas July 5, 2012, no pet. h.) (mem. op); Office of the Attorney Gen. v. Diaz, No. 13-10-00479-CV, 2011 Tex. App. LEXIS 8349, at 7 (Tex. App.—Corpus Christi Oct. 20, 2011, pet. filed) (mem. op.)], the courts held that because the Texas Supreme Court ruling in Kerrville State Hospital v. Fernandez, 28 S.W.3d 1 (Tex. 2000) has never been overruled by the Supreme Court, state agencies may be sued for worker’s compensation retaliation under Labor Code sec. 451. The courts’ reasoning is that the suit in Fernandez dealt with the State Applications Act, Chapter 501 of the Texas Labor Code, which clearly waived sovereign immunity for suits under sec. 451 and did not deal with the Political Subdivisions Law, which was dealt with by the Supreme Court in Norman. However, the issue is not over since appeals have been filed in the cases to the Texas Supreme Court. Stay tuned and we should know in the near future.