Appellee Amanda Sims sued her employer, appellant Tarrant County College District (TCCD), claiming that she was discriminated against due to her sexual orientation and pled facts alleging a violation of the Texas Whistleblower Act and the Texas Constitution. TCCD filed a plea to the jurisdiction and moved to dismiss Sims' claims on the basis of sovereign immunity. The trial court denied TCCD's plea to the jurisdiction, and TCCD appeals. In two issues, TCCD argues the trial court erred in denying its plea to the jurisdiction.
We conclude the following:
• Sims' claim of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA).
• Sims' remedy under the TCHRA forecloses any action under the Texas Whistleblower Act.
• Sims' constitutional claims established the existence of a genuine issue of material fact to overcome TCCD's challenge to the trial court's subject matter jurisdiction.
We affirm the trial court's denial of TCCD's plea to the jurisdiction regarding Sims' constitutional claims. Regarding Sims' claims under the Whistleblower Act, we reverse the trial court's order denying TCCD's plea to the jurisdiction, render judgment dismissing her Whistleblower Act claims, and remand for further proceedings consistent with this opinion.
In November 2019, Sims filed her original petition in Dallas County district court against TCCD alleging her employment was terminated only after she revealed to her supervisor that she is a lesbian. Sims claimed she was subjected to discrimination because of her sexual orientation and asserted TCCD's termination of her employment constituted a violation of the Whistleblower Act and Texas Constitution.
Specifically, Sims alleged the following facts: (1) she was a TCCD employee for three years and received performance evaluations reflecting above-average performance throughout her employment and had also received the Chancellor's Excellence Award for her work achievements; (2) Sims revealed she is a lesbian to her supervisor and co-workers when she served as a member of a TCCD committee addressing diversity issues; (3) thereafter, Sims began experiencing hostile treatment: her supervisor, who "expressed religious views that held homosexuals in a negative light," told Sims she had to "overlook [her] bias" when it came to Sims; (4) one of Sims' responsibilities was to oversee a student-run convention on a TCCD campus; (5) as part of the convention, TCCD had previously allowed Sims to collect vendor fees for events via her PayPal account; (6) Sims did not spend the funds for her personal use and fully disclosed her activities to TCCD; and (7) in 2018, TCCD audited Sims' activities and determined Sims did not engage in any improper activities.
Sims' petition alleged TCCD began to subject her to discrimination because of her sexual orientation. Around March 26, 2019, Sims reported to the Fort Worth Human Relations Commission that TCCD violated the City of Fort Worth ordinance prohibiting discrimination based upon sexual orientation. On April 4, 2019, TCCD placed Sims on administrative leave, and Sims' employment was terminated on July 1, 2019, for what Sims claimed were "pretextual reasons."
In January 2020, TCCD filed its plea to the jurisdiction and motion to dismiss Sims' claims. TCCD argued it was entitled to dismissal of Sims' claims because the TCHRA provided the exclusive remedy for a public employee's discrimination and anti-retaliation claims. Further, TCCD argued it had not waived immunity from suit under the Whistleblower Act for a discrimination-based retaliation claim; therefore, dismissal was proper. TCCD argued the court lacked jurisdiction to hear Sims' whistleblower and constitutional claims because "the TCHRA is [Sims'] exclusive statutory remedy for addressing a discriminatory based retaliation claim in state court."
In February 2020, Sims filed a response to TCCD's plea to the jurisdiction stating that, because she reported that TCCD discriminated against her based on her sexual orientation, her claim was not preempted by the TCHRA because the TCHRA did not prohibit sexual orientation discrimination. As to her constitutional claims, Sims argued the Texas Constitution preempts all state laws, and her constitutional claims could therefore not be preempted by the TCHRA.
At a hearing on TCCD's plea to the jurisdiction, the trial judge characterized this case as "a situation where there is no remedy [under the TCHRA] for the underlying conduct of being discriminated against based on sexual orientation." TCCD argued the fact that the TCHRA did not mention sexual orientation did not "mean that the legislature intended for employment discrimination claims premised on other characteristics to be controlled by a statutory scheme other than the TCHRA." TCCD argued Sims' claim of "being discriminated against on the basis of her sex and gender stereotyping" was "covered under the TCHRA," but no Texas court had ruled on the issue of whether the TCHRA protected her "status of sexual orientation." Sims' counsel argued that Sims' claim was "about being retaliated against for complaining about sexual orientation discrimination." Sims' counsel further argued that the "Texas Constitution does protect individuals from discrimination based on sexual orientation."
On February 21, 2020, the trial court signed an order denying TCCD's plea to the jurisdiction. The order outlined the arguments made in the parties' pleadings and contained the following paragraph:
The parties agree that [T]CHRA does not include a prohibition against sexual orientation discrimination or retaliation for reporting sexual orientation discrimination. They further agree that the statute does provide a remedy for sex discrimination based on a failure to conform to gender stereotypes. It is also undisputed between the parties that Plaintiff's lawsuit alleges the former conduct, not the latter. Plaintiff's lawsuit expounds upon and alleges facts in support of her claims that are unrelated to assertions of sex discrimination/gender stereotyping (facts a jury could determine motivated the alleged adverse employment actions), including purported expressions by her supervisor of negative attitudes about gay people and bias against Plaintiff because of her sexual orientation. No authority was offered to the Court that the type of harm claimed by Plaintiff in this suit is the type of harm [T]CHRA was enacted to redress or the type of harm Texas courts have held is made unlawful by the statute.
This appeal followed.
In two issues, TCCD argues the trial court erred in denying its plea to the jurisdiction on Sims' whistleblower and constitutional claims. We review the trial court's ruling on a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004) ; City of Plano v. Hatch , 584 S.W.3d 891, 895 (Tex. App.—Dallas 2019, no pet.). In performing this review, an appellate court does not look to the merits of the case but considers only the pleadings and evidence relevant to the jurisdictional inquiry. City of Seagoville v. Lytle , 227 S.W.3d 401, 408 (Tex. App.—Dallas 2007, no pet.). A plea to the jurisdiction is a dilatory plea that contests the trial court's authority to determine the subject matter of the cause of action. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). When a plea to the jurisdiction challenges the pleadings, we must determine if the pleader has alleged sufficient facts to demonstrate affirmatively the trial court's jurisdiction to hear the cause. See Ryder Integrated Logistics, Inc. v. Fayette Cty. , 453 S.W.3d 922, 927 (Tex. 2015) ; Hatch , 584 S.W.3d at 895. To make this determination we look to the pleader's intent, construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings as true. Hatch , 584 S.W.3d at 895. Where the pleadings do not allege sufficient facts to demonstrate affirmatively the trial court's jurisdiction but do not affirmatively demonstrate an incurable jurisdictional defect, the issue is one of pleading sufficiency, and the plaintiffs should be given an opportunity to amend. Miranda , 133 S.W.3d at 226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.
In Texas, governmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether. Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006). TCCD does not dispute that immunity is waived for suits brought under the TCHRA; instead, TCCD argues "the TCHRA provides the exclusive remedy for a public employee's discrimination claim."
One of the general purposes of the TCHRA is to: "(1) provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments ( 42 U.S.C. Section 2000e et seq. )." TEX. LAB. CODE § 21.001(1). The TCHRA was "enacted to address the specific evil of discrimination and retaliation in the workplace," as well as to coordinate and conform with federal anti-discrimination and retaliation laws under Title VII. Prairie View A & M Univ. v. Chatha , 381 S.W.3d 500, 504 (Tex. 2012) (quoting City of Waco v. Lopez , 259 S.W.3d 147, 153–55 (Tex. 2008) ). Although the Texas Supreme Court considers the TCHRA's plain language and its own precedent in interpreting the TCHRA, the court does look to federal law for guidance in situations where the TCHRA and Title VII contain analogous statutory language. Chatha , 381 S.W.3d at 505.
The relevant section of the TCHRA provides the following:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment;
TEX. LAB. CODE § 21.051. Similarly, Title VII provides the following:
(a) Employer practices
It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
42 U.S.C. § 2000e-2. Thus, both the TCHRA and Title VII prohibit discrimination "because of ... sex."
The parties agree that no Texas state court has addressed the issue of whether discrimination based on sexual orientation is prohibited under the TCHRA. Therefore, we look to federal law for guidance. Chatha , 381 S.W.3d at 505. At the time of the hearing on TCCD's plea to the jurisdiction, applicable federal authority held that, "[f]or four decades, it has been the uniform law of the land, affirmed in eleven circuits, that Title VII of the 1964 Civil Rights Act prohibits sex discrimination—not sexual orientation or transgender discrimination." Wittmer v. Phillips 66 Co. , 915 F.3d 328, 333 (5th Cir. 2019) (Ho, J., concurring). Clearly, the trial court was aware of this authority when it stated in its order that the parties agreed the TCHRA "does not include a prohibition against sexual orientation discrimination or retaliation for reporting sexual orientation discrimination."
The trial court in this case entered its order in February 2020. Four months later, the United States Supreme Court, in June 2020, issued its opinion in Bostock v. Clayton County, Georgia , ––– U.S. ––––, 140 S. Ct. 1731, 1754, 207 L.Ed.2d 218 (2020). In Bostock , the court held that Title VII's prohibition on discrimination "because of ... sex" prohibits an employer from failing or refusing to hire or from firing an individual for being homosexual or being a transgender person. Id. at 1738–43. In reaching this decision, the court reasoned as follows:
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit.
Id. at 1737. As the court concluded, "[a]n employer who fires an individual merely for being gay or transgender defies the law." Id. at 1754.
In order to reconcile and conform the TCHRA with federal anti-discrimination and retaliation laws under Title VII, we conclude we must follow Bostock and read the TCHRA's prohibition on discrimination "because of ... sex" as prohibiting discrimination based on an individual's status as a homosexual or transgender person. See Bostock , 140 S. Ct. at 1738–43 ; Chatha , 381 S.W.3d at 504–05. In light of Bostock , Sims' claims are now properly brought under the TCHRA. See Bostock , 140 S. Ct. at 1738–43 ; Chatha , 381 S.W.3d at 504–05. Sims' remedy under the TCHRA forecloses relief under the more general Whistleblower Act. See City of Waco , 259 S.W.3d at 154. Thus, to the extent TCCD argues Sims was not entitled to relief under the Whistleblower Act, we sustain TCCD's first issue in part.
However, where the pleadings do not allege sufficient facts to demonstrate affirmatively the trial court's jurisdiction but do not affirmatively demonstrate an incurable jurisdictional defect, the issue is one of pleading sufficiency, and the plaintiffs should be given an opportunity to amend. Miranda , 133 S.W.3d at 226–27. TCCD does not dispute that Sims' claims come under the TCHRA. Here, Sims alleged she was discharged because of her sexual orientation, but she incorrectly characterized her claim as a claim under the Whistleblower Act. After Bostock , it is clear that Sims' claim must be brought under the TCHRA. We therefore remand in order to give Sims an opportunity to amend her pleadings. See Miranda , 133 S.W.3d at 226–27. To the extent TCCD argues in its first issue that Sims' claims should be dismissed, we overrule TCCD's first issue in part.
As to Sims' constitutional claims, TCCD argues Sims has failed to sufficiently plead a constitutional claim against TCCD. Specifically, TCCD argues Sims has failed to allege any protected property interest upon which her due process claim can be based, she has failed to allege that she was treated differently than similarly situated TCCD employees investigated and found guilty of violating TCCD policy, and her allegation that she was terminated for pretextual reasons is "simply not enough to invoke TCCD's waiver of immunity." TCCD did not raise these arguments in its plea to the jurisdiction or its supplement to the plea to the jurisdiction, and it did not make these arguments at the hearing on its plea to the jurisdiction.
TCCD acknowledges the Texas Constitution authorizes suits against political subdivisions for equitable or injunctive relief for violations of the Texas Bill of Rights. See City of Beaumont v. Bouillion , 896 S.W.2d 143, 148–49 (Tex. 1995) (citing TEX. CONST. art. I, § 29 ); City of Houston v. Downstream Envtl., L.L.C. , 444 S.W.3d 24, 38 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). The guarantees found in the Bill of Rights are excepted from the general powers of government; the State has no power to commit acts contrary to the guarantees found in the Bill of Rights. TEX. CONST. art. I, § 29 ; Bouillion , 896 S.W.2d at 148. To avoid dismissal on a plea to the jurisdiction, a plaintiff must establish the existence of a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction. Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770–71 (Tex. 2018).
Here, as already discussed, Sims' pleadings alleged she was retaliated against and discriminated against based on her sexual orientation in violation of the Texas Constitution. Sims sought monetary relief in her claim for damages. There is no implied right of action to recover money damages for violation of the due-course-of-law provision in the Texas Bill of Rights. Downstream Envtl. , 444 S.W.3d at 40. However, as to her constitutional claims, Sims requested a "declaration that [TCCD] violated [Sims'] right under the Texas Constitution and City of Fort Worth ordinance to be free from discrimination on the basis of her sexual orientation" and "an injunction against [TCCD] to prohibit discrimination against [Sims] and other homosexual employees because of their sexual orientation." Thus, Sims' constitutional claims did not seek monetary damages; instead, Sims' constitutional claims sought the kind of equitable and injunctive relief authorized under the Texas Constitution for violations of the Texas Bill of Rights. See Bouillion , 896 S.W.2d at 148–49.
TCCD did not conclusively negate the validity of Sims' constitutional claims. See Downstream , 444 S.W.3d at 38–39. Under the facts and circumstances of this case, we conclude Sims' constitutional claims established the existence of a genuine issue of material fact to overcome TCCD's challenge to the trial court's subject matter jurisdiction. Clark , 544 S.W.3d at 770–71. We therefore affirm the trial court's denial of TCCD's plea to the jurisdiction regarding Sims' constitutional claims.
Finally, we reject TCCD's argument that Sims has engaged in impermissible "venue shopping" in bringing her claim in Dallas County. We note that venue and jurisdiction are two separate questions. See, e.g., State v. Pounds , 525 S.W.2d 547, 550 (Tex. App.—Amarillo 1975, writ ref'd n.r.e.). "Jurisdiction is the power of the court to decide a controversy between parties and to render and enforce a judgment with respect thereto; venue is the proper place where that power is exercised." Id. Here, we consider only the pleadings and evidence relevant to the jurisdictional inquiry. See Lytle , 227 S.W.3d at 408. Further, we are not convinced our resolution of this matter would in any way encourage venue shopping in future cases. We overrule TCCD's second issue.
Although Sims' petition alleged she resides in Tarrant County and TCCD's address for service of process is in Fort Worth, Sims filed suit in Dallas County pursuant to section 554.007(b) of the Whistleblower Act. Section 554.007(b) provides that "[a] public employee of a local governmental entity may sue under this chapter in a district court of the county in which the cause of action arises or in a district court of any county in the same geographic area that has established with the county in which the cause of action arises a council of governments or other regional commission under Chapter 391, Local Government Code." Tex. Gov't Code Ann. § 554.007(b). Sims' petition alleged Tarrant County and Dallas County are members of the North Texas Council of Governments and venue was therefore proper in Dallas County.
We affirm the trial court's denial of TCCD's plea to the jurisdiction regarding Sims' constitutional claims. Regarding Sims' claims under the Whistleblower Act, we reverse the trial court's order denying TCCD's plea to the jurisdiction, render judgment dismissing Sims' Whistleblower Act claims, and remand for further proceedings consistent with this opinion.
Schenck, J., concurring and dissenting.
CONCURRING AND DISSENTING OPINION
Opinion by Justice Schenck
I concur in the result of the majority's opinion because Sims clearly has a viable claim, including a federal cause of action that we as state courts are bound to recognize as within the trial court's jurisdiction. The majority goes on, however, to reach the question of whether the Texas Legislature intended the Texas Commission on Human Rights Act to make governmental and private employers subject to suit for claims of alleged employment discrimination based on sexual orientation. Because Sims's claim falls squarely within the district court's jurisdiction, regardless of whether it is said to be grounded in federal or state law, the district court did not have an opportunity to consider whether our state law was affected by the United States Supreme Court's decision in Bostock v. Clayton County, Georgia , ––– U.S. ––––, 140 S. Ct. 1731, 1754, 207 L.Ed.2d 218 (2020), and no party before us presents the issue in an adversarial posture, I view this case as particularly ill-suited to reach that question and as an attempt to make new law at this stage. The parties nevertheless urge us to reach the merits and to presume that the legislature intended the TCHRA's "general guidance" provision to have the effect of incorporating the Bostock holding four decades after the enactment of its text. I disagree with that conclusion for multiple reasons.
In 2004, the Texas Commission on Human Rights (TCHR) was replaced with the Texas Workforce Commission civil rights division (TWC). See Tex. Lab. Code § 21.0015. Our courts have continued to refer to the chapter as the Texas Commission on Human Rights Act or TCHRA. E.g., Prairie View A&M Univ. v. Chatha , 381 S.W.3d 500, 502 n.1 (Tex. 2012).
Accordingly, I cannot join in the majority's decision to hold that Bostock controls the state law question of our interpretation of the TCHRA, and I respectfully concur in the result only.
I. Our Procedural Posture Should Counsel Us to Avoid Unnecessary Pronouncements
First, I am concerned that the able trial court did not have a chance to review Bostock before reaching its decision. As noted by the majority, the order at issue here was signed on February 21, 2020. The United States Supreme Court issued its decision in Bostock on June 15, 2020. At the time the trial court signed its order, most federal circuit courts of appeal, including the Fifth Circuit, had "expressly held that Title VII does not prohibit discrimination on the basis of sexual orientation." See Wittmer v. Phillips 66 Co. , 915 F.3d 328, 330 (5th Cir. 2019) (citing Blum v. Gulf Oil Corp. , 597 F.2d 936 (5th Cir. 1979) ). While this alone would not ordinarily compel us to avoid developing an unsettled legal question on interlocutory appeal, as we would review such issues de novo in any event, this is hardly my only concern with the posture of this case.
I am also concerned that we have no one—among the appellant, the appellee, and an amicus—joining issue over the question of how to interpret the TCHRA's operative prohibition on discrimination "because of ... sex." The appellant–employer, Tarrant County College District, urges acknowledgement of the TCHRA claim only because it also argues that such a recognition would be exclusive (and thus fatal) to the whistleblower claim on which the plaintiff relied below. The appellee, meanwhile, advocates for the state law claim only on appeal, explaining at oral argument that she did not anticipate the Bostock decision at the pleading stage and "may prefer" to rely on a state court remedy. Putting aside Sims's initial pleading decisions or preference for discovering a new state claim, a case or controversy typically requires advocacy from both sides to meaningfully develop the issues and arguments before us and to avoid issuing unnecessary, advisory opinions. Va. House of Delegates v. Bethune-Hill , ––– U.S. ––––, 139 S. Ct. 1945, 1950, 204 L.Ed.2d 305 (2019) (discussing standing requirements of Article III of U.S. Constitution ); see also S. Tex. Water Auth. v. Lomas , 223 S.W.3d 304 (Tex. 2007).
Plaintiff's pre-suit notice referenced Title VII explicitly and she has clarified, in a post argument letter brief, that she intends to preserve her right to amend her pleadings, if necessary, to present the federal cause of action.
II. As Sims's Federal Title VII Cause of Action Supports Jurisdiction over Her Claim, Reaching Beyond That Question Is Not Necessary to Resolve the Jurisdictional Question
Regardless of my foregoing concerns, I have no doubt that Sims has a viable federal cause of action under Title VII. Since 1990, that cause of action has been cognizable in state court. See Yellow Freight Sys., Inc. v. Donnelly , 494 U.S. 820, 821, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). Thus, barring some contrary decision by the Texas Supreme Court, we are bound to recognize and exercise jurisdiction over this claim. E.g., Garcia v. Shell Oil , 355 S.W.3d 768, 772 n.4 (Tex. App.—Houston [1st Dist.] 2011, no pet.). To be sure, Sims's petition in this case did not explicitly reference federal law. There is no requirement for it to do so under our notice pleading rules, however. TEX. R. CIV. P . 47(a). A petition "presupposes the applicable rules of law." 2 MCDONALD'S TEXAS CIVIL PRAC . § 7:11 (1992). And, the court is presumed both to know the law, state or federal, and to be capable of taking "notice [of] and apply[ing] the proper rule." Lyon Van Lines v. Ogden , 503 S.W.2d 632, 636 (Tex. App.—Houston [1st Dist.] 1974, no writ) ; see also W&T Offshore v. Meyers , 577 S.W.3d 247, 256 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (op. on rehearing) ("Meyers was not required to plead for the application of federal or Louisiana law for the trial court, or this court, to take notice of it.") (citing Daugherty v. S. Pac. Transp. Co. , 772 S.W.2d 81, 83 (Tex. 1989) ).
Sims might have explicitly disavowed any federal claim that might naturally arise from the factual averments of her petition to avoid removal, for example. She did not do that, however. On the contrary, her counsel explained at argument that he did not believe such a claim was viable when this case was filed and thus did not address the issue of whose law, state or federal, he invoked in support of Sims's claim. While plaintiff's counsel indicated that Sims may now prefer to rely on a state remedy, should it exist, she has not unequivocally eschewed that available federal remedy on appeal or explained how the state remedy, if recognized, would be different.
Caterpillar, Inc. v. Williams , 482 U.S. 386, 392 n.7, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ; see, e.g., Leaumont v. City of Alexandria , 1:13-CV-02397, 2013 WL 5426013, at *1–2 (W. D. La. Sept. 26, 2013), aff'd , 582 Fed. App'x 407 (5th Cir. 2014).
In view of these pleadings, I would recognize jurisdiction over the claim, regardless of its derivation, and remand this matter to allow the parties to develop the issue in accordance with the governing law, including important ancillary questions such as venue. E.g., City of Dallas v. Jones , No. 05-07-00831-CV, 2008 WL 588997, at *4 (Tex. App.—Dallas Mar. 5, 2008, pet. denied) (mem. op.) (court not required to parse each cause of action making up claim that is dependent on same facts where jurisdiction over claim is proper); see also Thomas v. Long , 207 S.W.3d 334, 338–39 (Tex. 2006).
Because I would conclude that Sims does not have a separate remedy available to her under the TCHRA, I would not conclude her whistleblower claim is barred by the TCHRA, though it may still be redundant of the federal claim. In all events, the viability vel non of that theory of recovery would not, under the circumstances presented in this interlocutory appeal, justify separate parsing of the claim in to order answer the limited jurisdictional question before us. See City of Waco v. Lopez , 259 S.W.3d 147, 154 (Tex. 2008).
Finally, to the extent the jurisdictional issue might be remedied by amendment to more specifically articulate the viable Title VII claim, leave to do so should be given. See Cty. of Cameron v. Brown , 80 S.W.3d 549, 559 (Tex. 2002).
III. Neither the TCHRA's Operative Text Nor Its "General Purpose" Provisions Can Reasonably Be Read to Reach This Claim
Pressed forward to the merits, I see the question of whether the TCHRA creates a claim for damages against governmental and private employers alleged to have discriminated against employees or applicants on account of their sexual orientation as one of Texas state law governed by the intent of the legislature that enacted it and the governor who signed it in 1983. The United States Supreme Court majority in Bostock was able to draw on a plethora of federal statutes in support of its conclusion that Congress would (or should) have understood the phrase "because of sex" to include "sexual orientation" as a matter of federal law in 1964, see Bostock , 140 S. Ct. at 1739–40, but Texas had a far different statutory landscape when the TCHRA was enacted in 1983 and codified in 1993. Indeed, at the time the TCHRA was passed and through today our state law foreclosed same-sex marriage and our criminal code affirmatively outlawed and penalized "homosexual conduct," foreclosing the prospect that the legislature simultaneously intended to create a claim for damages against governmental and private employers for allegedly discriminating in this regard. Whether any of this is good or bad policy, then as now, is a question for the legislature, not the courts. What matters, for our purposes, is what the law says and what the legislature understood it to mean at the time.
E.g., Perez v. Zagami, LLC , 218 N.J. 202, 212, 94 A.3d 869 (2014) (statement of governor on signing state civil rights law); see also N. Singer , 2A Sutherland Statutory Construction § 48.05 (Sands 4th ed. 1985) ("The governor's action in approving or vetoing a bill constitutes a part of the legislative process, and the action of the governor upon a bill may be considered in determining legislative intent."). The extent to which an executive signing statements are probative is a matter of debate, of course. John M. de Figueiredo, Edward H. Stiglitz, Signing Statements and Presidentializing Legislative History , 69 Admin. L. Rev. 841, 847–52 (2017).
Tex. Const. art. §§ 1, 32; Tex. Fam. Code § 2.001 (b) (prohibiting marriage license issuance "for the marriage of persons of the same sex"); but see Obergefell v. Hodges , 576 U.S. 644, 675–76, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) (declaring unconstitutional state laws to extent they exclude same-sex couples from civil marriage on same terms and conditions as opposite-sex couples).
Section 21.06 of our penal code remains in our statutes though it was declared unenforceable in 2003. See Lawrence v. Texas , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (declaring Tex. Penal Code § 21.06 unconstitutional).
A. We Construe Our Statutes in Accordance with the Plain Meaning Ascribed to the Language at the Time
In construing the TCHRA or any other statute, Texas courts are obliged to "give [the] language used in a statute the meaning with which it was used by the legislature." Michael v. Michael , 34 Tex.Civ.App. 630, 79 S.W. 74, 74 (Tex. Civ. App.—San Antonio 1904) ; see also Taylor v. Firemen's Civil Serv. , 616 S.W.2d 187, 189 (Tex. 1981) (statute should be given "meaning it had when enacted"). Thus, even if one puts aside the disagreements about how the Supreme Court applied the federal statutory language in determining what the U.S. Congress should have been presumed to intend in Title VII, neither the U.S. Code nor the U.S. Constitution addressed the phrase "because of sex" in a manner remotely approximating the background Texas law in 1983. Indeed, it is difficult to imagine how the Bostock majority could have formed around its construction of Title VII if the U.S. Code resembled our own.
I do not understand the majority even to suggest that the legislature or Governor White might have understood themselves to be creating the claim at issue here when the TCHRA was enacted. Instead, the majority follows the parties and appellee's supporting amicus in resorting to one of the "general purposes" of the TCHRA as "(1) provid[ing] for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." LAB. § 21.001(1).
B. The "General Purposes" Provision Does Not Silently or Automatically Incorporate Later Developments in Federal Law Except Insofar as It Is Analogous to Texas Law
The parties quite properly note that our supreme court has cited the "general purposes" provision and embraced federal law for "guidance" where the TCHRA and Title VII are "analogous." See, e.g., Quantum Chem. v. Toennies , 47 S.W.3d 473, 476 (Tex. 2001) ; Specialty Retailers v. DeMoranville , 933 S.W.2d 490, 492 (Tex. 1996) (per curiam). As the federal Equal Employment Opportunity Commission —and every federal appellate court prior to Bostock —had uniformly rejected the argument that Title VII's language reached alleged sexual orientation discrimination in 1983, the Texas Legislature's understanding of Title VII would have clearly run in one direction at the time it listed the "general purposes" underlying the THCRA. Thus, there is no reason to believe the legislature would have foreseen this reading of Title VII in 1983 when even the parties in this case did not foresee it at the pleadings stage in this case.
Bostock , 140 S. Ct. at 1757 n.7 & 1777 n.41 (Alito, J., dissenting) (collecting EEOC positions).
Bostock , 140 S. Ct. at 1777 (Alito, J., dissenting).
Accordingly, even if one assumes the "general purposes" provision was intended to expand upon the operative text, it would have confirmed, rather than conflicted with, Texas state law at the time the trial court here reviewed the issue. Thus, to recognize this claim, it would be necessary for the "general purposes" provision to be intended to operate prospectively and to potentially change the intended reach of the act at the time. As explained below, I do not believe that the legislature intended to leave (or even could have left) this basic question unaddressed in the original enactment, thus leaving its answer to the judiciary, much less the judiciary of another sovereign.
While the parties understandably cite Toennies and like cases applying section 21.001's "general purpose" of tracking policies embraced in "Title VII and its subsequent amendments," they do not cite Prairie View A & M University v. Chatha , 381 S.W.3d 500, 505 (Tex. 2012). In that case, our supreme court considered and rejected the argument that subsequent development of federal law would be carried directly backwards into the TCHRA by operation of section 21.001 and without regard to the intention of the legislature that enacted it. Id. at 507. While the court acknowledged the general purpose of tracking federal policy, it made clear that "the Legislature could not have foreseen every possible Title VII amendment going forward, and there is no indication the Legislature intended to automatically adopt every conceivable Title VII amendment, however substantive and far-reaching, into the TCHRA." Id. at 507.
What is critical, then, and wholly missing from the parties' arguments, is any explanation as to why the Texas Legislature would have considered Title VII's reading in 2020 to be analogous to the background Texas law in 1983 when it so clearly conflicted with both Texas and federal law at the time. If the "guidance" in section 21.001(1) had been intended to have the meaning the parties now urge, why would any of the rest of the TCHRA's text have been necessary? Title VII and the decisions applying it—then and in the future—would supply the rule of decision under the TCHRA. To be sure, the legislature meant something by enacting the operative provisions. The controlling question is what the legislature intended when it passed the TCHRA in 1983. See Chatha , 381 S.W.3d at 507 ; Taylor , 616 S.W.2d at 189 (statute should be given "meaning it had when enacted").
C. I Doubt That the Legislature Could Confer the Authority to Recognize This Claim to Another Body
I also doubt that the legislature even could have validly left this issue for later resolution by the U.S. Supreme Court or the U.S. Congress. Under the federal constitution, the states, qua states, are responsible for their own governance and for their own decisions, for good or ill. U.S. CONST. amend. X ; Mistretta v. United States , 488 U.S. 361, 371, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (finding nondelegation doctrine rooted in principle of separation of powers).
The Texas Constitution hardly shrinks from that mandate. Instead, it unambiguously declares its own laws to be "supreme" and insists upon a separation of powers among the branches. TEX. CONST . art. I §§ 1 – 2. Article III, Section 1 of the Texas Constitution vests in the legislature the exclusive power and responsibility to make laws, subject only to contemporaneous executive veto and subsequent judicial review for constitutionality. TEX. CONST. art. III, § 1. It is thus "[a] settled maxim" of Texas "constitutional law ... that the power conferred upon the legislature to make the laws cannot be delegated by that department to any other body or authority." TEX. CONST. art. III, § 1 interp. commentary. Article III, Section 1 of the Texas Constitution generally prohibits delegations to another government's entities. See Proctor v. Andrews , 972 S.W.2d 729, 733 (Tex. 1998). I thus reject the implication of the parties' arguments that the interpretation of the TCHRA could be materially altered by a later decision of the U.S. Supreme Court interpreting federal law.
IV. Our Role as Part of the State Judiciary Does Not Support Our Reaching This Issue or Answering It as the Parties Have Urged
The wisdom of whether the TCHRA should be defined to include a prohibition on discrimination because of sexual orientation is not a question for us. Our role as the state judiciary is simply to interpret the laws. See Fin. Comm'n of Tex. v. Norwood , 418 S.W.3d 566, 581 (Tex. 2013) ; see also Bostock , 140 S. Ct. at 1738 ("If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people's representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations."). As noted, the power and responsibility to legislate has been granted to another body. Compare TEX. CONST. art. III, § 1 with art. V, § 1. Because such a holding is neither necessary at this juncture nor, in my view, appropriate in view of the text of the act and our limited role in construing it, I disagree with the majority's holding.
Finally, while I have no license to add to or subtract from this or any other legislation Texas has seen fit to pass, I commend the legislature's efforts to combat discrimination in the workplace to date and recognize that decisions to alter the at-will employment doctrine implicate broad policy considerations including the expenses inherent in litigation and respect for the rights and dignity of employers and employees alike. Whether the legislature sees fit to add to the claims thus far recognized by, for example, prohibiting disparate treatment based on sexual orientation, unpopular political expression, or any other cause, is a matter commended by the constitution exclusively to the legislature itself.
Because I cannot join in the majority's decision to hold that Bostock controls our interpretation of the TCHRA, I respectfully concur in the result only.