Texas State Auditor's Office v. Mora-Nichols - Amicus Brief by the Faculty Rights Coalition (FRC) Houston

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Amicus Curiae, individually and on behalf of employees of state institutions of higher
education, submits this brief in support of Plaintiff-Appellee Rosa Mora-Nichols, urging the
Court to consider the additional arguments and authorities presented herein in deciding
whether Plaintiff-Appellee may maintain suit against the Defendants in their official
capacities, and whether the trial court's denial of the Defendants' plea to the jurisdiction
should be affirmed upon rehearing, and these claims be remanded to the trial court for
further proceedings.

STATEMENT OF THE CASE

In the underlying wrongful termination suit Rosa Mora-Nichols alleges, inter alia, that her
public employer and its agents retaliated against her for the exercise of her first
amendment rights and seeks, along with damages, declaratory relief and equitable relief in
the form of reinstatement. The Plaintiff sued the named defendants both in their individual
and official capacities on various legal theories including tort claims and constitutional
claims. Only the official capacity claims are before this Court in this interlocutory appeal.
The claims against the Defendants in her individual capacity remain pending in the trial
court and are not at issue here

STATEMENT OF FACTS

To the extent the legal arguments set forth in this brief require reference to facts, they are
based exclusively on the facts as set forth in the Court's October 30, 2003 opinion. Amicus
Curiae incorporates the Court's recitations of facts herewith and expresses no opinion as
to the strength of Mora-Nichols' claims on the merits.

STATEMENT OF JURISDICTION

As a general rule, an appeal may be taken only from a final judgment. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001). A judgment is final for purposes of
appellate review if it disposes of all pending claims and parties, as determined from the
language of the judgment and the record in the case. Id. at 195. An order that dismisses a
case is a final judgment. See Ritzell v. Espeche, 87 S.W.3d 537, 538 (Tex. 2002). This
appeal involves Mora-Nichols' causes of action against a governmental unit and the
individually named defendants in their official capacity. Claims against the named
defendants in his individual capacity, however, remain pending in the trial court. Because
there is no order disposing of all issues and parties, this appeal is interlocutory in nature.

Jurisdiction over interlocutory orders is established by statute. This Court has jurisdiction
to review the denial of the State Auditor's Office's plea to the jurisdiction pursuant to the
Civil Practice and Remedies Code, which permits the interlocutory appeal of an order
denying a plea to the jurisdiction by a governmental unit. See TEX. CIV. PRAC. & REM.
CODE ANN. §51.014(a)(Vernon Supp. 2002).

Whether this Court has jurisdiction to consider the denial of the plea to the jurisdiction of
the individually named defendants is not so clear, however. This will depend on the Court's
construction of the Section 51.014(a)(8) and in conjunction with the definitions set forth in
Section 101.001.

The key question for the court to answer in order to determine whether it has jurisdiction to
review the denial of the plea to the jurisdiction as to Larry Alwin, Carol Smith, and Gail
Hines, is whether they constitute a "governmental unit" by virtue of having been sued in
their official capacities.

ISSUES PRESENTED

A. Appellate Court's Jurisdiction over Interlocutory Order

Does the Court of Appeals have jurisdiction to review an interlocutory order granting or
denying a plea to the jurisdiction by government officials in addition to the an order
denying a plea to the jurisdiction by a governmental unit pursuant to TEX. CIV. P. & REM.
CODE ANN. §51.014(a)(8)(Vernon Supp. 2002)?

B. State Constitutional Law

Is a governmental official sued in his official capacity for declaratory and injunctive relief
entitled to sovereign / governmental immunity?

Does Texas constitutional law recognize a liberty interest in the integrity of a person's
reputation equivalent to the liberty interest recognized by federal courts under the federal
constitution?

Does the Texas Bill of Rights afford a plaintiff a cause of action for nonmonetary relief
premised on retaliation for the exercise of First Amendment rights in the employment
context?

Does the Texas constitution recognize a person's interest in his or her reputation as an
interest of constitutional dimensions independent of any liberty or property interest?

C. Remedies for Constitutional Violations under Texas Law

Is a suit against a government official seeking non-monetary equitable relief jurisdictionally
barred by sovereign immunity?

Does a suit against a governmental official seeking to enjoin or correct constitutional
violations require waiver of sovereign immunity?

SUMMARY OF THE ARGUMENT

The trial court's decision to deny the official-capacity defendants' plea to the jurisdiction
was proper and should be affirmed with respect to equitable relief (including reinstatement)
because Rosa Mora-Nichols pleaded valid claims of constitutional violations regardless of
whether the acts complained of are deemed acts of the State.

It does not matter whether or not the challenged acts by the Defendants are deemed acts
of employing state entity because the protections set forth in the Texas Bill of Rights apply
both to the state itself and to its agents. Suits to enforce constitutional rights do not
implicate sovereign immunity and do not require legislative waiver. See Brazosport Sav. &
Loan Ass'n v. American Sav. & Loan Ass'n, 161 Tex. 543, 342 S.W.2d 747, 750 (Tex.
1961); Lopez v. Public Util. Comm'n, 816 S.W.2d 776, 783 (Tex.App.-Austin 1991, writ
denied). Only monetary relief is barred by sovereign immunity in the absence of a valid
waiver.

Accordingly, Amicus Curiae urges the Court to hold that

(1) claims for equitable and injunctive relief against state officials sued in their official
capacity are not barred by sovereign immunity (even if monetary relief is barred) because
state actors are bound by the constitution. The Bill of Rights would be rendered
meaningless if no suit could be instituted and maintained to enforce constitutionally
protected rights against state actors who violate them.

Amicus Curiae also urges the court to confirm that

(2) a showing of a protected property interest is not a necessary element of a viable free
speech retaliation claim (even though it may be a necessary element for a viable due
course of law claim), and that

(3) a claim for deprivation of a liberty interest in reputation is actionable under the Texas
constitution at least to the extent the relief sought is not in the form of money damages
barred by City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995).

ARGUMENT AND AUTHORITIES

I. STANDARD OF REVIEW

A. Review of Trial Court's Ruling on Plea to the Jurisdiction: De Novo

A plea to the jurisdiction contests a trial court's authority to consider the subject matter of a
cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554, 44 Tex.Sup.Ct.J. 125
(Tex. 2000). Because subject matter jurisdiction presents a legal question, review of a
district court's ruling on a plea to the jurisdiction is de novo. Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 928, 41 Tex. Sup. Ct. J. 517 (Tex. 1998). In order to prevail, the party
asserting the plea to the jurisdiction must show that even if all the allegations in the
plaintiff's pleadings are taken as true, there is an incurable jurisdictional defect apparent
from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer
jurisdiction on the trial court. Texas Bd. of Pardons & Paroles v. Feinblatt, 82 S.W.3d 513,
517, 2002 (Tex.App.-Austin 2002, writ denied) (citing Rylander v. Caldwell, 23 S.W.3d 132,
135 (Tex.App.-Austin 2000, no pet.).

B. Review of Trial Court's Ruling on Jurisdiction Does Not Involve Review of the
Merits.

When reviewing a trial court's ruling on a plea to the jurisdiction based on sovereign
immunity, the appellate court's task is not to determine whether the plaintiff ultimately wins
or loses; rather, its task is to decide whether the facts as alleged support jurisdiction in the
trial court. Generally, a petition is sufficient to confer jurisdiction on the court to hear a
matter if it gives fair notice of acts upon which the pleader bases his claims so that the
opposing party may adequately prepare a defense. See Garvey v. Vawter, 795 S.W.2d
741, 742 (Tex. 1990). A petition is sufficient if the cause of action may be reasonably
inferred from what is specifically stated. See Crockett v. Bell, 909 S.W.2d 70, 72 (Tex.App.-
Houston [14th Dist.] 1995, no writ). The trial court properly determined that it had
jurisdiction over Plaintiff's free speech retaliation claims based on the Plaintiff's averment
that an adverse employment action was taken against her in retaliation for her exercise of
First Amendment rights, an allegation that must be taken as true for purposes of
determining subject matter jurisdiction. (1)

The question of whether the Plaintiff is entitled to the relief requested on the merits only
becomes ripe for consideration after the trial court determines that it has subject matter
jurisdiction. Here, the trial court denied the Defendants' plea and thereby implicitly ruled
that it had jurisdiction over the causes of action brought against the named defendants in
their official capacities.

Appellants challenge the trial court's determination of jurisdiction. Review of jurisdictional
rulings is de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928, 41 Tex. Sup. Ct.
J. 517 (Tex. 1998). Given the procedural posture of the case, the question of evidence on
the merits is not reached, either in the trial court, or on appeal.

II. NO STATUTORY WAIVER OF IMMUNITY TO SUIT IS REQUIRED

A. Unauthorized or Illegal Acts by Government Agents Are Not Deemed Acts of the
State

The acts of officials which are not lawfully authorized are not acts of the State, and an
action against the officials by one whose rights have been invaded or violated by such
acts, for the determination and protection of his rights, is not a suit against the State within
the rule of immunity of the State from suit. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d
709, 712 (Tex. 1945). Therefore, the named officials are not protected by sovereign
immunity against suit, although they may ultimately escape liability if they can prevail with
an affirmative defense to liability.

Declaratory judgment actions may be maintained against governmental units and named
officials, to have an ultra vires act declared void. Texas Highway Com'n v. Texas Ass'n of
Steel Imp., Inc., 372 S.W.2d 525, 530-31 (Tex. 1963)(Suit to have Highway Commission
order declared invalid as violative of competitive bidding statute was not a suit against the
State.); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (Tex. 1945)(Declaratory
judgment action is not a suit against the State because it does not seek damages or
enforcement of a contract); TRST Corp, Inc. v. Financial Center, 9 S.W.3d 316, 323
(Tex.App.-Houston [14th Dist.] 1999, pet. denied); Texas Parks & Wildlife Dept. v.
Callaway, 971 S.W.2d 145, 151-52 (Tex.App.-Austin 1998, no pet.).

In addition to declaratory relief a plaintiff may also seek injunctive relief when the
government acts in a way that exceeds its authority granted by the constitution. Director,
Etc. v. Printing Industries Ass'n, 600 S.W.2d 264 (Tex. 1980).

In the case at bar, the Plaintiff's live pleadings allege that the Defendants acted unlawfully.
Upon review of the plea to the jurisdiction on appeal, the pleader's allegations are taken as
true. Because unlawful acts by definition fall outside the scope of authorized acts, Plaintiff
is not required to establish waiver of sovereign immunity and the trial court properly denied
the Defendants' plea to the jurisdiction.

B. If Individuals Could Not Sue to Enforce Rights under the State Bill of Rights
Against Governmental Actors Violating Them, These Protections Would Be
Meaningless

A party may seek to enjoin the actions of a state official even though the official may assert
defenses only as a state official acting on behalf of the State and even though the
judgment may be binding on the State. Bagg v. University of Tex. Med. Branch, 762
S.W.2d 582, 585 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). If sovereign
immunity barred such suits, the protections accorded individuals in the Bill of Rights would
be rendered meaningless, because they could not be enforced in case they are trampled
by government agents. It is well settled that state action (or action under color of law) is a
necessary requirement of constitutional claims.

Indeed the Bill of Rights and the Fourteenth Amendment were specifically designed to
constrain government. They do not apply to private actors. For this very same reason
Plaintiff's equal protection claim cannot possibly be barred jurisdictionally by sovereign
immunity with respect to declaratory and injunctive relief. Plaintiff's equal protection claim
would have to be dismissed if she asserted it against a private employer. The same applies
to violations of First Amendment rights.

C. Although it Does Not Expressly Authorizes Tort Damages, the Texas
Constitution Guarantees a Remedy for Violations of Individual's Right to the
Integrity of Their Reputations and Thus Repudiates or Modifies Any Common Law
Principle to the Contrary

The Open Courts Provision of the Texas Constitution states that "[a]ll courts shall be open,
and every person for an injury done him, in his land, goods, person or reputation shall
have a remedy by due course of law." TEX. CONST. art. I, § 13.

Unlike the federal constitution, the Texas constitution expressly recognizes that individuals'
interest in the integrity of their reputation is one of constitutional dimensions, rather than
just guaranteeing due process with regard to deprivation of life, liberty, and property
interests.

The Texas Supreme Court has stated the standard to be used in construing constitutional
questions in Director, etc v. Printing Industries Ass'n, 600 S.W.2d 264, 267 (Tex. 1980).
The Director court reiterated the following construction principle: "The fundamental rule for
the government of courts in the interpretation or construction of a Constitution is to give
effect to the intent of the people who adopted it" 600 S.W.2d at 267, quoting Cox v.
Robison, 105 Tex. 426, 150 S.W. 1149, 1151 (Tex. 1912). Cornett v. Damon, 768 S.W.2d
770 (Tex.App-Houston [14th Dist.] 1989). The intent is manifest in the wording of section
13, which states that every person shall have a judicial remedy for certain injuries done to
them - among them injury to their reputation.

The word "reputation" must be presumed to have been carefully selected by the framers of
the constitution. Leander I.S.D. v. Cedar Park Water Supply Corp., 479 S.W.2d 908, 912
(Tex. 1972); Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147, 152 (Tex. 1943). In
addition, in construing the constitution, courts are not authorized to thwart the will of the
people by reading into the constitution language not contained therein, or by construing
the constitution differently from its plain meaning. Cramer, 167 S.W.2d at 152. Courts
should avoid a construction which renders any provision meaningless or inapposite.
Hanson v. Jordan, 145 Tex. 320, 198 S.W.2d 262, 263 (1946)(emphasis added). Cornett
v. Damon, 768 S.W.2d 770 (Tex.App-Houston [14th Dist.] 1989).

To the extent the common law accorded public officials immunity to suit, the Texas
Constitution abrogated it by providing that its courts shall be open so that injured parties
may seek a remedy. Sovereign immunity is a common-law doctrine that preceded the
Texas constitution, and thus its Open Courts provision. Green Int'l. Inc. v. State, 877
S.W.2d 428, 436-37 (Tex.App.-Austin 1994, writ dism'd). The common law cannot continue
in effect when it has been superseded by the choices the people of Texas have made in
adopting their constitution. The people of Texas also determined that individuals should be
compensated when the government takes their property. Unlike the Takings Clause, the
Open Courts provision does not require or authorize monetary compensation, but to say
that it forecloses any remedy in the case when the injury is done by a governmental official
would do violence to its plain and express wording.

An appropriate equitable remedy in a case of this nature might be a court-ordered
retraction of false defamatory statements, if any, about an employee or a judicial
declaration to that effect, assuming the plaintiff can prove the allegation on the merits. (2)
Denial of all and any relief on jurisdictional grounds would contravene the Open Courts
provision and would effectively emasculate the Texas Bill of Rights.

Accordingly, the trial court's denial of the Defendant's plea to the jurisdiction should be
affirmed, and Mora-Nichols should be afforded an opportunity to show herself entitled to
equitable relief to undo the reputational damage she has allegedly suffered, if any.

III. MORA-NICHOLS MAY PROCEED WITH CLAIMS FOR REINSTATEMENT FOR
VIOLATIONS OF HER CONSTITUTIONAL RIGHTS

Appellee avers in her live pleadings that she was terminated in violation of her
constitutional rights, and that Defendants retaliated against her for her exercise of the
state constitutional equivalents of her federal First Amendment rights. Plaintiff sued the
named defendants in their official capacities alleging constitutional violations seeking
declaratory and equitable relief. Such relief is clearly not barred by sovereign immunity.
These remedies would provide vindication for the Plaintiff and correction of unlawful
conduct by state officials. While they may not make Mora-Nichols whole, they may mitigate
the harm she has suffered and may continue to suffer in her career.

The Texas Supreme Court has held that there is no implied private right of action for
damages under the Texas Constitution when an individual alleges the violation of speech
and assembly rights. City of Beaumont v. Bouillion, 896 S.W.2d 143 (1995), but that
equitable relief was not barred.

The Supreme Court did not resolve in Bouillion what types of equitable relief might be
available in a wrongful discharge claim brought under the Texas Constitution. The Corpus
Christi Court of Appeals later held that reinstatement was an appropriate equitable remedy
for a former City Secretary whose at-will employment was terminated by the newly elected
Mayor for political reasons. That court also approved the award of a permanent injunction,
enjoining the defendants from "interfering" with the former City Secretary's employment.
The court found that the judicial remedy adequately comported with the at-will doctrine by
allowing the City of Alamo to discharge the City Secretary "for lawful reasons and if lawful
procedures are followed." City of Alamo v. Montes, 904 S.W.2d 727, 734 (Tex.App.-Corpus
Christi 1995), rev'd as moot, 934 S.W.2d 85 (Tex. 1996)(finding that Secretary's
resignation moots injunction by court of appeals). The case is significant because it stands
for the proposition that a vested property interest is not even required to successfully
make out a claim for injunctive relief.

In City of Midland, the Texas Supreme Court recently held that the court of appeal's
remand of the plaintiff's claim for reinstatement as a remedy for alleged violations of the
due course of law and free speech provisions of the Texas Constitution was appropriate.
See TEX. CONST. art. 1, §§ 8, 19. City of Midland v. O'Bryant, 18 S.W.3d 209 (Tex. 2000).
In that case the Third Court of Appeals concluded that the Supreme Court's decision in
City of Beaumont. v. Bouillion, 896 S.W.2d 143 (Tex. 1995), did not foreclose an "equitable
remedy per se," and remanded the reinstatement claims to the trial court without further
discussion. O'Bryant v. City of Midland, 949 S.W.2d 406, 411 (Tex.App.-Austin 1997). The
Court concluded that reinstatement was available as a remedy for the alleged
constitutional violations and that summary judgment on that claim for relief was
inappropriate. O'Bryant, 949 S.W.2d at 414-15.

As long as a litigant seeks equitable relief in the form of an order of reinstatement to his or
her job, rather than monetary damages, the remedy sought is a permissible one. See
Texas S. Univ. v. Araserve Campus Dining Servs., 981 S.W.2d 929, 935
(Tex.App.-Houston [1st Dist.] 1998, pet denied); Alcorn v. Vaksman, 877 S.W.2d 390, 404
(Tex.App..-Houston [1st Dist.] 1993, writ denied)(unlike suits for monetary damages, suits
against State seeking equitable remedies for constitutional violations are allowed without
State's consent).

According to this Court's October 30, 2003 opinion, reinstatement is one of the remedies
Mora-Nichols is seeking. There is no reason why Mora-Nichols should be prohibited from
pursuing this form of relief even if her money damages claims are barred by immunity.
After all, litigants are entitled to plead in the alternative, proceed on different legal theories,
and seek alternative forms of judicial relief.

In addition to reinstatement, Mora-Nichols appears to seek to clear her name by means of
a judicial declaration that the defendants made pejorative statements about her in
connection with an employment discharge. In doing so, they may have deprived
Mora-Nichols of a state constitutional interest in the integrity of her reputation.

In the case of violations of state constitutional rights by a public official a declaratory
judgment is a permissible remedy. While not the only relief that Plaintiff is seeking,
declaratory relief is appropriate to undo some of the damage caused by false defamatory
statements, especially if money damages are not recoverable under the Texas Constitution
and thus not available to vindicate the Plaintiff and make her whole. See City of Beaumont
v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995).

The merits of whether Mora-Nichols is entitled to some, all, or none of the equitable relief
she is seeking is a determination that rests within the sound discretion of the trial court
judge or the jury. It is not before this court. The question before this court is whether the
trial court has jurisdiction to provide or deny the type of relief sought on the merits, and
whether Mora-Nichols' allegations and claims against the Defendants have properly
invoked the trial court's jurisdiction.

Since Mora-Nichols also sought equitable relief on her claims of constitutional violations,
and since such relief is not jurisdictionally barred, the denial of the defendants' plea to the
jurisdiction by the trial court was proper and should be affirmed.

IV. MORA-NICHOLS' CONSTITUTIONAL CLAIMS ARE VIABLE UNDER BOTH THE
TEXAS AND THE U.S. CONSTITUTION

A. Due Course of Law Violation: Deprivation of a Protected Liberty Interest

Article I, section 19 of the Texas Constitution provides: "No citizen of this State shall be
deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land." TEX. CONST. art I §19.

It is well settled that although the due process clause of the Fourteenth Amendment and
the due course of law provision of the Texas Constitution differ in their language, the
differences "are without meaningful distinction." University of Tex. Med. Sch. v. Than, 901
S.W.2d 926, 929 (Tex. 1995)(quoting Mellinger v. City of Houston, 68 Tex. 37, 2 S.W. 249,
252-53 (Tex. 1887)). In matters of procedural due process, Texas courts traditionally follow
federal due process interpretations and consider federal decisions on these matters
persuasive authority. Id. at 929; House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654,
657-58, 9 Tex. Sup. Ct. J. 23 (Tex. 1965); Limon v. State, 947 S.W.2d 620, 626 n. 6
(Tex.App.-Austin 1997, no pet.).

Questions of procedural due process require an analysis of (1) whether the plaintiff has a
constitutionally protected property or liberty interest at stake, and (2) if so, what process is
due to sufficiently protect that interest. Board of Regents of State Colls. v. Roth, 408 U.S.
564, 569-70, 33 L.Ed. 2d 548, 92 S. Ct. 2701 (1972). At a minimum, due process requires
notice and an opportunity to be heard at a meaningful time and in a meaningful manner.
Mathews v. Eldridge, 424 U.S. 319, 333, 47 L.Ed. 2d 18, 96 S.Ct. 893 (1976); Perry v. Del
Rio, 67 S.W.3d 85, 92, 45 Tex. Sup. Ct. J. 52 (Tex. 2001): University of Tex. Med. Sch. at
Houston v. Than, 901 S.W.2d 926, 930, 38 Tex. Sup. Ct. J. 910 (Tex. 1995).

In Board of Regents v. Roth the U.S. Supreme Court stated that as a general rule, a state's
decision not to rehire a nontenured professor, without more, does not implicate any liberty
interest, but noted that a "different case" would be presented if the state had "based the
nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty,
or immorality." 408 U.S. 564, 573, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548 (1972). To the
extent Mora-Nichols alleges that the Defendants made statements injurious to her
reputation in the context of an employment dispute, this different scenario is present in her
case.

Since the Due Course of Law clause is nearly identical to the federal Due Process clause
found in the U.S. Constitution and has been interpreted as being coextensive, the violation
of Plaintiff's liberty interest in her professional reputation is actionable under state law also,
at least as long as the remedy sought is a permissible one. See TEX. CONST. art. I, § 19;
U.S. CONST. amend. XIV; Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.
1995).

Accordingly, the trial court's denial of the Defendants' plea to the jurisdiction should be
affirmed and the case remanded so that Mora-Nichols may proceed with her state
constitutional claim alleging a deprivation of a liberty interest, and seek equitable relief.

B. Violation of First Amendment Rights under Texas Constitution

Mora-Nichols complains inter alia that the Defendants fired her after she contacted a
legislator to express concerns about possible violations of law at the Auditor's office. To
the extent she complains of retaliation for exercising her First Amendment rights, she is not
required to show that she had a vested property interest.

Mora-Nichols can rely on the free speech clause of the Texas Constitution and the
right-to-petition-for-redress-of-grievances clause of the Texas Constitution. See TEX.
CONST. art. I, § 8 and § 27.

A cause of action for retaliation is well established under federal and state jurisprudence,
although money damages are not available for state constitutional violations. See Texas
A&M v. Luxemburg, 93 S.W.3d 410 (Tex.App. -Houston [14th Dist.] 2002, writ denied);
Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216 (5th Dir. 1999).

C. Free Speech

Section 8 of the Texas Bill of Rights provides that:

Every person shall be at liberty to speak, write or publish his opinions on any subject,
being responsible for the abuse of that privilege; and no law shall ever be passed
curtailing the liberty of speech or of the press. In prosecutions for the publication of
papers, investigating the conduct of officers, or men in public capacity, or when the matter
published is proper for public information, the truth thereof may be given in evidence. And
in all indictments for libels, the jury shall have the right to determine the law and the facts,
under the direction of the court, as in other cases. TEX. CONST. art. I, §8

The First Amendment of the United States Constitution provides that "[c]ongress shall
make no law ... abridging the freedom of speech. " U.S. CONST. amend. I. The Fourteenth
Amendment makes this limitation applicable to the states. City of Ladue v. Gilleo, 512 U.S.
43, 45 n.1, 129 L. Ed. 2d 36, 114 S.Ct. 2038 (1994).

Public employees may not be forced to give up their First Amendment rights as a condition
of public employment. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20
L.Ed.2d 811 (1968), though not all employee speech is subject to constitutional scrutiny.
Only speech which may be "fairly characterized as constituting speech on a matter of
public concern" is protected, Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689,
75 L.Ed. 2d 708 (1983). Whether speech touches on a matter of public concern is a
question of law for the district court to resolve. Phares v. Gustafsson, 856 F.2d 1003, 1007
(7th Cir. 1988).

Whether Mora-Nichols speech involved matters of public concern cannot be determined
without the benefit of a developed record. This is not properly determined in a plea to the
jurisdiction, but in a summary judgment proceeding or at trial.

The U.S. Supreme Court has held that a public employee may "establish a claim to
reinstatement if the decision not to rehire him was made by reason of his exercise of
constitutionally protected First Amendment freedoms." Mt. Healthy City Bd. of Educ. v.
Doyle, 429 U.S. 274, 283-84, 50 L.Ed. 2d 471, 97 S.Ct. 568 (1977). An employee's
untenured status will not defeat constitutional claims. See Perry v. Sindermann, 408 U.S.
593, 597-98, 33 L.Ed. 2d 570, 92 S.Ct. 2694 (1972)(declaring that a professor's lack of
tenure did not defeat the claim that the nonrenewal of his contract was in retaliation for the
exercise of his constitutional right to free speech).

The Fourteenth Court of Appeals reached the same conclusion in Texas A&M v.
Luxemburg on state constitutional grounds, 93 S.W.3d 410 (Tex.App.-Houston [14th Dist.],
2002, writ denied)(professor ordered reinstated to non-tenured position as remedy for
violation of his constitutional right to free speech).

It is thus well settled that a public employee does not have to have a protected property
interest in the form of tenure or a contract before he or she can present a viable claim of
constitutional violations and seek correction of the wrong he or she has suffered.

Mora-Nichols' pleadings aver that the Defendants committed wrongful acts in retaliation for
her exercise of her constitutional rights. Mora-Nichols thus also satisfied the requirement of
pleading a causal nexus between the protected First Amendment activity and the wrongful
conduct by the Defendants. Whether she can prove them at trial, of course, is a different
matter. The question of the sufficiency of the evidence, however, is not before this Court.
Because Plaintiff appears to adequately have pleaded constitutional violations and sought
permissible equitable relief, the trial court was correct in denying the Defendants' plea to
the jurisdiction.

D. Right to Seek Redress of Grievances

Section 27 of the Texas Bill of Rights provides that:

The citizens shall have the right, in a peaceable manner, to assemble together for their
common good; and apply to those invested with the powers of government for redress of
grievances or other purposes, by petition, address or remonstrance.
TEX. CONST. art. I, §27

This is the state constitutional bill of rights provision corresponding to the fourth and fifth
freedoms guaranteed by the First Amendment of the U.S. Constitution, which the Auditors
are also bound by as state actors.

Plaintiff exercised her rights pursuant to these provisions of the state and federal bill of
rights by pursuing a complaint about her classification, pay, and evaluation in the
workplace, by contacting and discussing concerns over discrimination with an elected
representative, and by eventually taking her grievances to federal and state court.

The Fifth Circuit has recognized that it is well established that access to the courts is
protected by the First Amendment right to petition redress of grievances. Ryland v.
Shapiro, 708 F.2d 967, 971-72 (5th Cir. 1983); Wilson v. Thompson, 593 F.2d 1375, 1387
(5th Cir. 1979). Texas court's have generally followed federal jurisprudence on First
Amendment issues, although greater protections for speech have sometimes been found
in the Texas rights charter. See Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992).

Plaintiff's right to seek redress is not only guaranteed by the First Amendment and its state
constitutional counterpart. In addition, and in the alternative, Plaintiff's right to seek judicial
relief against the alleged wrongful acts by the Defendants is also guaranteed by the Open
Courts Provision of the Texas Constitution which states that "[a]ll courts shall be open, and
every person for an injury done him, in his land, goods, person or reputation shall have a
remedy by due course of law." TEX. CONST. art. I, § 13.

The Court's October 30, 2003 indicates that Mora-Nichols alleges inter alia that the
Defendants damaged her reputation. Unlike the federal constitution, the Texas constitution
specifically accords constitutional recognition to individuals' interest in their reputation,
rather than merely their property, liberty, and persons. (3) See supra.

Suit to seek redress for reputational damage caused by the Defendants is thus specifically
authorized by the Texas Constitution itself and no additional statutory authorization or
showing of a deprivation of property is required. The Open Courts provision thus provides
an alternative basis upon which Plaintiff may proceed even if, assuming arguendo, she
cannot meet the burden of establishing a violation of a constitutional property or liberty
interest in connection with an adverse employment action.

Accordingly, the trial court's decision to deny the Defendants' plea to the jurisdiction was
not erroneous and should be affirmed.

V. MORA-NICHOLS IS ENTITLED TO AN OPPORTUNITY TO AMEND BEFORE
DISMISSAL FOR FAILURE TO PLEAD FACTS ESTABLISHING JURISDICTION

A trial court should not grant a plea to the jurisdiction without first allowing a plaintiff to
replead, if the jurisdictional defect is susceptible to amendment that would show the court's
jurisdiction. Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917(Tex. 1960); Texas
Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If an apparent
jurisdictional deficiency is curable, the actual issue is one of the sufficiency of the
pleadings, not jurisdiction. Bybee, 331 S.W.2d at 917. Pleading deficiencies are properly
challenged by special exception practice. Massey v. Armco Steel Co., 652 S.W.2d 932,
934 (Tex. 1983). When special exceptions are not filed, the court must construe pleadings
liberally in favor of the pleader. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186
(Tex. 1977). Defects in pleadings not excepted to are waived. Tex. R. Civ. P. 90. When
special exceptions are filed and granted, the trial court may not dismiss a cause of action
at the same time it sustains special exceptions. Friesenhahn v. Ryan, 960 S.W.2d 656,
658-59 (Tex. 1998).

Granting a plea to the jurisdiction without offering Plaintiff an opportunity to cure the
pleading deficiency, if any, constitutes reversible error. Peek v. Equipment Serv. Co., 779
S.W.2d 802, 805 (Tex. 1989). Here, the appellate court's reversal of the trial court's denial
of the Defendant's ruling on the plea to the jurisdiction and rendition of a dismissal
judgment would have the same effect as a dismissal by the trial court without an
opportunity to replead. If the trial court had dismissed Mora-Nichols' claims without
affording her an opportunity to replead, it would have been reversible error.

Assuming Mora-Nichols' pleading of her First Amendment retaliation claims is deficient, she
cannot cure them on appeal. Therefore, this Court should remand this cause to the trial
court for further proceedings, including possible amendment. The Court should remand for
this purpose even if this Court determines that the Plaintiff's live pleadings at the time the
trial court ruled on the plea to the jurisdiction did not allege sufficient facts to invoke the
trial court's jurisdiction over the Defendants in their official capacities. Defendants can in
due course seek dismissal on the merits in a summary judgment proceeding should
Mora-Nichols be unable to marshal evidence to prove her claims of constitutional violations.

PRAYER

For the foregoing reasons Amicus Curiae requests that this Court affirm the trial court's
order denying Defendants' plea to the jurisdiction, and remand Mora-Nichols' constitutional
claims to the trial court for further proceedings.

Respectfully submitted,

_____________________________________

WOLFGANG HIRCZY DE MIÑO, PH.D.
D/B/A FACULTY RIGHTS COALITION
Texas Bar Card No. 32143
P.O. Box 521
Bellaire, TX 77402-0521
Tel.: (713) 806-8517
Fax: (713) 527-0391

Endnotes:

1. The Court's opinion indicates that Mora-Nichols exercised her rights by appraising a
state representative of concerns over racial discrimination at the Auditor's office and that
she complained and sought redress for grievances in her work place.

2. Suing such a defendant in his/her individual capacity in tort does not present a viable
alternative because such a defendant will generally prevail with an affirmative defense of
official and qualified immunity against a claim for money damages precisely because of
his/her status as a public official. The only viable remedy is thus an equitable remedy,
whether injunctive or declaratory, that applies to the official in his or her official capacity
who engages in wrongful conduct under color of law.

3. Federal law does not recognize a person's interest in his or her reputation - standing
alone - as a constitutionally cognizable interest protected by due process.

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Note: Table of Contents, Identification of Parties, Amicus Curiae Disclosure Statement,
Table of Authorities, and Certificate of Service have been omitted. The formatting was
changed to improve readability. The pdf version of the brief is available upon request.
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