Texas Department of Criminal Justice v. Jerry Ray Edgin--Appeal from 12th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00095-CV

Texas Department of Criminal Justice,

Appellant

v.

Jerry Ray Edgin,

Appellee

From the 12th District Court

Madison County, Texas

Trial Court No. 04-10356-012-10

DISSENTING Opinion

The majority has ignored the substance of the issues presented. The fundamental issue presented is that if we take as true all of the factual allegations of the non-movant and evidence, if any, in the record, the non-movant cannot allege a cause of action for which sovereign immunity has been waived by the State of Texas. After all, one of the essential questions in deciding whether the plaintiff has pled a claim against the State of Texas for which sovereign immunity has been waived is whether the plaintiff has pled a claim at all.

The majority implies that the conclusory allegations of the non-movant, that he thought he was retaliated against for opposing a discriminatory practice, is all that is necessary to assert a Chapter 21 claim. If I understand the State s plea to the jurisdiction, the State is arguing that as a matter of law the factual allegations do not allege a claim within the waiver of sovereign immunity under Chapter 21. Therefore, as I understand the State s argument to proceed, because the allegations do not assert a Chapter 21 claim, and because the allegations and discovery affirmatively show that the non-movant cannot allege a claim under Chapter 21, the State s plea to the jurisdiction should therefore be granted because no set of facts has been or can be alleged that will give the trial court jurisdiction. I agree with the State s analysis of the relevant law.

The majority limits its Chapter 21 claim analysis for sovereign immunity to (1) whether a claimant exhausted administrative remedies; and (2) whether the State qualifies as an employer. Thus, the majority has wholly failed to address the dispositive issue presented by the State.

I dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed April 18, 2007