Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of February 26, 2007

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

City of Keller v. Wilson, No. 02-00-00183-CV (Mar. 1, 2007) (op. on remand and on reh'g) (en banc) (Cayce, C.J., joined by Holman and Gardner, JJ.; Livingston, J., concurs and dissents with opinion, joined by Dauphinot, J.; Walker, J., dissents with opinion, joined by McCoy, J.).: Held: Because the Legislature did not waive the City's immunity from suit for the Wilsons' water code violation claim, and because the City did not waive its immunity by requesting costs and attorney's fees in the prayer of its defensive pleading, the trial court lacked subject matter jurisdiction over the Wilsons' water code violation claim. Therefore, we vacate the trial court's judgment for the Wilsons on their water code violation claim and dismiss that claim.; Concurrence and dissent: Although this court must review the jurisdictional, governmental immunity issue raised for the first time on remand, instead of rendering judgment for the City on that issue, the case should be remanded to the trial court to give the Wilsons an opportunity to amend their pleadings in accordance with Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).; Dissent: Because the City of Keller's purported governmental immunity from the Wilsons' water code violation claim was not raised in the trial court, was not raised as an issue in this court, was not raised as a conditional issue in the supreme court, was not raised in a motion for rehearing in the supreme court, and was not raised in a motion to recall the supreme court's mandate, at this point in time, it is not and can never be an "other issue raised on appeal." Because the supreme court's mandate instructs us to address only the "other issues raised on appeal" and because the issue of the City of Keller's alleged governmental immunity from suit for the Wilsons' water code violation claim is not one of the “other issues raised on appeal,” it falls outside the scope of the supreme court's mandate to this court.
Wesley Barron v. Cook Children's Health Care Sys., No. 02-06-00200-CV (Mar. 1, 2007) (Walker, J., joined by Holman and Gardner, JJ.).: Held: A treatment facility under section 161.134 of the health and safety code is any entity listed in section 464.001(5) of the health and safety code that has a "planned, structured, and organized program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs." Because neither Cook Children's Health Care System nor Cook Children's Physician Network fall within that definition of a treatment facility, section 161.134 does not prohibit those entities from suspending, terminating, disciplining, or otherwise discriminating against an employee who allegedly reports a violation of law.