author: W. KENNETH LAW, Chief Justice.

text:
    Pearl WITKOWSKI and Joseph Phillips, Individually and on behalf of a class of all others similarly situated; and Deanna Warner, Individually and on behalf of a class of all others similarly situated, Appellants, v. BRIAN, FOOSHEE AND YONGE PROPERTIES, a Texas General Partnership; George Yonge; Jefferson Fooshee; Patrick Brian; and Embrey Partners, Ltd., a Texas Limited Partnership, Appellees.
    No. 03-03-00768-CV.
    Court of Appeals of Texas, Austin.
    Dec. 8, 2005.

      Geoffrey N. Courtney, Austin, for Deanna Warner.
    Lori R.E. Ploeger, Cooley Godward LLP, Palo Alto, CA, for Pearl Witkowski.
    R. James George, Jr., Taline Manassian, George & Brothers, LLP, Austin, for Pearl Witkowski and Joseph Phillips.
    Jeffrey R. Jury, Amanda Lewis, Burns, Anderson, Jury & Brenner, LLP, Austin, for Brian, Fooshee & Yonge Properties, George Yonge, Jefferson Fooshee, Patrick Brian.

      Walter H. Mizell, Brown, McCarroll, LLP, Austin, for Embrey Partners, Ltd.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

W. KENNETH LAW, Chief Justice.

We grant appellants’ motion for rehearing, withdraw our opinion and judgment issued June 23, 2005, and substitute the following in its place.

This appeal arises from the sale of the River Woods apartment complex, part of which was designated as low-income housing, located in Austin, Texas. Appellants — Pearl Witkowski, Joseph Phillips, and Deanna Warner, individually and on behalf of two classes of all others similarly situated — are former low-income tenants and persons eligible for low-income tenancy at River Woods. Appellants assert that they are entitled to collect damages from appellees, who are the property owners — Brian, Fooshee and Yonge Properties, a general partnership, and Patrick Brian, Jefferson Fooshee, and George Yonge, individuals (collectively, “BFY”)— and the proposed purchaser of the property — Embrey Partners, Ltd. (“Embrey”)— because these parties acted improperly to effect the release of the low-income housing restrictions, resulting in the low-income tenants’ eviction from River Woods.

Following their eviction, appellants filed suit against BFY and Embrey, but the district court granted summary judgments in favor of appellees. Appellants then moved for leave of court to file a fifth amended petition, which was opposed by BFY. Ultimately, the court denied appellants’ motion for leave to amend their petition and issued a final judgment in favor of BFY and Embrey as to all claims asserted by appellants, ordering that appellants take nothing.

Appellants now appeal the trial court’s decision, urging in five issues that the court erred (1) by granting summary judgment in favor of BFY and Embrey and (2) by denying appellants’ motion for leave to amend, thereby “dismissing” the newly asserted claim contained in appellants’ proposed fifth amended petition. We will affirm.

BACKGROUND

The low-income housing restrictions governing the River Woods complex were imposed pursuant to 12 U.S.C. § 1441a, which was enacted following the savings and loan crisis of the late 1980s. See 12 U.S.C. § 1441a (2001 & Supp.2005). As part of § 1441a, Congress established the Resolution Trust Corporation (“RTC”) to serve as a receiver of all properties previously held by failed thrift institutions. See id. § 1441a(b). The River Woods property was previously held by a failed thrift and, thus, by 1990 was under the RTC’s control.

As part of the Act, the RTC was given the authority to sell such residential properties as long as the sale complied with the Affordable Housing Disposition Program (“AHDP”). See id. § 1441a(c). Pursuant to the AHDP, purchasers of thrift property must agree to provide residential housing opportunities to lower and very-low income families. Id. Specifically, the AHDP mandates that “not less than 35 percent of all dwelling units” shall be reserved for low-income housing. Id. § 1441a(c)(3)(E)(i)(I). The AHDP further requires that these restrictions be agreed to in a contract or other recorded instrument. Id. § 1441a(c)(3)(E)(ii); see also id. § 1441a(b)(10)(A)(i).

In 1991, the RTC sold River Woods to George Yonge, who conveyed it days later to Brian, Fooshee, and Yonge Properties. In order for the sale of River Woods to comply with the AHDP’s low-income housing regulations, the RTC and Yonge entered a written Land Use Restriction Agreement (“LURA”), which remained in effect when Yonge transferred the property to BFY. The LURA characterized River Woods as an “ ‘eligible multifamily housing property’ as defined in ... 12 U.S.C. § 1441a(c)(9)(D)” and stated that, “[d]uring the Term, Owner will maintain the Property as multifamily rental housing and will ... make continuously available for occupancy by Lower-Income Families ... not less than 40 Units, of which not less than 23 Units shall be made available for occupancy by Very Low Income Families.”

The LURA defined the “Term” as continuing either for forty years, or until the earliest one of four specified events occurred. One of the four events that could cause the Term to expire before the forty-year mark was “the date upon which the RTC or the Agency determines ... (i) that all or a portion of the Property is obsolete as to physical condition ... making it unusable for housing purposes, and (ii) that no reasonable program of modifications is financially feasible to return the Property or a portion of the Property to useful life.” “Agency” was defined in the LURA as “the State Housing Finance Agency [i. e., the Texas Department of Housing and Community Affairs (“TDHCA”) ] or any agency, corporation, or authority of the United States government that normally engages in activities related to the preservation of affordable housing,” which included the RTC or its predecessor, the Federal Deposit Insurance Corporation (“FDIC”). The LURA did not require any procedural steps, such as notice and hearing, before the applicable government agency could end the Term by determining that the property was physically obsolete and financially infeasible to repair.

Six years after acquiring River Woods, BFY agreed to sell the apartment complex to Embrey Partners. This sale was conditioned on obtaining a release of the low-income housing restrictions contained in the LURA. The purchase agreement stated as a “condition precedent” that “Purchaser shall have obtained (and Seller shall have cooperated in a reasonable manner to assist Purchaser) an executed instrument filed at or prior to Closing which abandons and/or releases the restrictive covenants, so that the result is the [LURA] is null and void.”

After Embrey and BFY considered various options for how to remove the “encumbrance” of the LURA, Yonge wrote to the TDHCA requesting that it release the LURA “due to the condition of the property.” Embrey joined BFY’s efforts to have the TDHCA release the LURA. Accordingly, Embrey submitted to the TDHCA a physical inspection report, which described the property as dilapidated and unsuitable for residential habitation, and a redevelopment proposal, which suggested demolishing the existing structure and constructing a new facility on the land.

In February 1998, the TDHCA recommended to the FDIC that the River Woods LURA be released. The letter was written by the Executive Director of the TDHCA and stated, “The Department has inspected the property and recommends the LURA be lifted for the entire property. There are project conditions which support a finding of obsolescence and that it is not economically feasible to rehabilitate the existing structures.” The letter also described specific, physical problems that the TDHCA identified as rendering the property unsuitable for habitation or rehabilitation and concluded by listing several reasons to support the agency’s recommendation that the LURA be terminated.

In March 1998, the. FDIC signed an order releasing River Woods from the LURA. The order stated that — in reliance on the- representations that the property was physically unsuitable for habitation and that neither modifications nor repairs were financially feasible — the FDIC, as successor in interest to the RTC, was releasing and discharging the River Woods property from all conditions, obligations, restrictions, and duties of the LURA. BFY, Embrey, and the TDHCA then entered an agreement reflecting the FDIC’s' determination that the LURA should be released because the River Woods property was unsuitable for residential housing, not financially feasible to repair, and in need of demolition.

For one year after these determinations were made, the River Woods apartments continued to be rented to tenants. On August 13, 1999, the day the sale was completed, eviction letters were sent to each of the River Woods tenants, notifying them that they had one month to leave, as demolition of the property would begin at 8:00 a.m. on September 14, 1999. The River Woods manager offered to refund all security deposits to the tenants and offered to compensate them fifteen dollars per day for each day that a tenant moved out before the 30-day deadline.

Appellants filed suit on April 4, 2000. They alleged a variety of claims against appellees — some against BFY and Embrey separately, and some against them jointly — including causes of action for constructive fraud, breach of contract, breach of fiduciary duty, tortious interference with a contract, and breach of an implied warranty of habitability. All of appellants’ claims were based on allegations that BFY and Embrey intentionally misrepresented the condition of the River Woods property to the TDHCA and the FDIC in order to improperly induce the agencies to release the LURA on the grounds that the property was unsuitable for habitation and financially infeasible to repair.

BFY initially sought summary judgment on appellants’ claims for breach of an implied warranty of habitability, breach of fiduciary duty, and unjust enrichment. The trial court granted the motion only as to the breach of implied warranty of habitability claim. Appellants do not appeal the first summary judgment.

Embrey joined BFY in a second summary judgment motion, seeking to dismiss all of appellants’ claims based on three alternative grounds: (1) appellants lack standing, (2) appellants failed to state a cause of action upon which relief could be granted, and (3) appellees are immune under the Noerr-Pennington doctrine, which protects government communications. The trial court granted BFY’s and Embrey’s summary judgment motion without stating the grounds and denied appellants’ request to issue findings of fact and conclusions of law.

Appellants then sought leave to amend their petition, which had previously been amended four times, urging that they needed an opportunity to “more clearly assert a [fraud] claim that has been the basis of their pleadings since the day this action was filed.” Appellants wanted to submit a fifth amended petition to include a claim for fraud on the basis that appel-lees had made misrepresentations to the tenants about the condition of the property, whereas their previous pleadings had focused on the alleged misrepresentations made to the TDHCA and the FDIC. Following BFYs opposition to this motion, the trial court refused to allow appellants leave to file a fifth amended petition. The trial court then issued a final, take-nothing judgment against appellants on all of then-claims,

Appellants now urge this Court to reverse the trial court’s final judgment on the grounds (1) that the summary judgment was inappropriate because they have standing as third-party beneficiaries and (2) that their motion for leave to file a fifth amended petition should have been granted and the new fraud claim contained within their proposed fifth amended petition should not have been dismissed.

ANALYSIS

Summary Judgment Based on Lack of Standing

A movant for summary judgment pursuant to Rule 166a(c) carries the burden to show that no genuine issue of material fact remains and that it is entitled to summary judgment as a matter of law. Tex.R. Civ. P. 166(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 646, 548 (Tex.1985). In reviewing the summary judgment, we view the evidence in a light most favorable to the nonmovant and determine whether the movant either disproved at least one element of each of the nonmovant’s theories of recovery or pled and conclusively established each element of its own affirmative defense. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005); Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001). When a trial court grants summary judgment without specifying the ground for its decision, summary judgment will be affirmed on appeal if “any of the theories advanced are meritorious.” Urena, 162 S.W.3d at 550.

BFY and Embrey asserted three alternative grounds for summary judgment. Because the trial court did not specify the ground upon which it granted summary judgment, the judgment must be upheld if we hold that any one of appellees’ three grounds is meritorious. See id. We begin by considering the primary ground argued at the summary judgment stage: whether appellants had standing. Appellants assert in their first issue that they have standing based on their status as third-party beneficiaries under both federal statute (the AHDP) and the contractual agreement (the LURA). Whether a statute or a contract provides a specific cause of action or a right of enforcement requires us to construe the statutory and contractual language as a matter of law. See Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 321 (Tex.2000) (Hecht, J., concurring). This Court’s objective in construing written language, whether it be that of a statute or contract, “is to give effect to the intent expressed in that language by the person or persons who wrote it or who agreed to be bound by it.... When we construe a statute, we say what the Legislature intended by the words it chose. When we construe a contract or deed, we say what the parties intended by the language they agreed to.” Lane Bank Equip. Co., 10 S.W.3d at 321 (citing City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.1995) (statutory construction), and Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994) (contract interpretation)). Consequently, our analysis must begin with the actual language of the statute and contract. Touche Ross, 442 U.S. at 568, 99 S.Ct. 2479; Lane Bank Equip. Co., 10 S.W.3d at 321.

No one disputes that both the AHDP and the LURA provide express rights to low-income tenants, including appellants, to enforce the low-income housing restrictions contained within the statute and the contract. Section (c)(11)(B) of the AHDP states: “The lower-income occupancy requirements applicable under paragraphs (2), (3), (12)(C), (13)(B), and (14)(C) shall be judicially enforceable against purchasers of property under this subsection or their successors in interest by affected very, low- and lower-income families....” 12 U.S.C. § 1441a(c)(11)(B). Section 6.2 of the LURA states that “[t]he occupancy requirements set forth in Section 2.2 of this Agreement also shall inure to, and may be judicially enforced against Owner by affected Lower-Income Families and Very-Low Income Families.”

The issue is whether appellants’ right to enforce these enumerated provisions provides them with a cause of action against BFY and Embrey, the property owners and proposed purchaser of the property, for allegedly misrepresenting to the TDHCA and the FDIC that, pursuant to the LURA’s term provision, the restrictions should be discontinued based on the dilapidated and irreparable condition of the property.

Each of the specifically enforceable provisions of the AHDP — provisions (2), (3), (12)(C), (13)(B), and (14)(C) — involve low-income occupancy requirements, but none of them govern the time period for which the requirements must be satisfied or the events that would cause such a term to expire. See id. §§ 1441a(c)(2), (3), (12)(C), (13)(B), (14)(C). The closest any of these provisions comes to governing the term of the restrictions is section (3)(E), which states that 35% of all units “shall be made available for occupancy by and maintained as affordable for lower-income and very low-income families during the remaining useful life of the property.” See id. § 1441a(c)(3)(E).

The specifically enforceable provision of the LURA — section 2.2 — similarly pertains to the number of units that must be reserved for low-income tenants, requiring the property owner to “make continuously available for occupancy by Lower-Income Families ... not less than 40 Units, of which not less than 23 Units shall be made available for occupancy by Very Low Income Families.” Unlike the AHDP, however, the LURA expressly states that these requirements are to be satisfied “[djuring the Term ” and specifies that the Term shall continue for forty years unless one of four designated events occurs and causes it to expire sooner.

Appellants argue — based on the language that the housing restrictions shall be effective “during the remaining useful life” in section (3)(E) of the AHDP and “during the Term” in section 2.2 of the LURA — that their right to enforce the term provisions is “expressly integrated” into their right to enforce the occupancy requirements. Accordingly, they assert that they have standing as third-party beneficiaries of both the statute and the contract to collect damages from BFY and Embrey for causing the Term to expire prematurely by misrepresenting the condition of the property to the TDHCA and the FDIC. We are not persuaded by appellants’ argument.

We apply a “strict rule of construction” to statutory enforcement schemes and imply causes of action only when the drafters’ intent is clearly expressed from the language as written. Brown v. Arturo De La Cruz, 156 S.W.3d 560, 567 (Tex.2004). When a statute explicitly provides certain rights of enforcement, but is silent as to the right sought to be enforced, we may presume that the Legislature intended for that right to not be included. Touche Ross, 442 U.S. at 571-72, 99 S.Ct. 2479 (“implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best”); see also Old Am. County Mutal Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex.2004) (“because we presume every word of a statute has been included or excluded for a reason, we will not insert requirements that are not provided by law”). Furthermore, a right of enforcement should not be implied simply because the statute “fails to adequately protect intended beneficiaries.” Brown, 156 S.W.3d at 567. The fact that a person has suffered harm from the violation of a statute does not automatically give rise to a private cause of action in favor of that person. Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).

The law similarly disfavors implying third-party rights of enforcement in the contractual context: a third-party who suffers harm as the result of a contracting party’s breach does not necessarily have a right to collect damages for that breach. See Stine v. Stewart, 80 S.W.3d 586, 589 (Tex.2002). “A third-party may recover on a contract only if the contracting parties intended to secure a benefit to that third-party, and only if the contracting parties entered into the contract directly for the third party’s benefit.” Id. (citing MCI Telecomms. Corp. v. Texas Util. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999)). A court will not create a third-party beneficiary contract by implication. Ortega v. City Nat'l. Bank, 97 S.W.3d 765, 773 (Tex.App.Corpus Christi 2003, no pet.). Rather, an agreement must clearly and fully express an intent to confer a direct benefit to the third-party. Id.

Both the AHDP and the LURA expressly define which provisions of the statute and the contract that low-income tenants are entitled to enforce. By granting some specific rights of enforcement regarding the low-income housing restrictions, Congress and the contracting parties demonstrated that, when they intended appellants to have certain rights of enforcement, they understood how to provide them. See Touche Ross, 442 U.S. at 572, 99 S.Ct. 2479. Nevertheless, neither the statute nor the contract provide appellants either a blanket right of enforcement or the express cause of action asserted here. Because Congress and the contracting parties granted certain rights of enforcement, yet remained silent on whether low-income tenants may collect damages from the property owner or proposed purchaser for inducing a premature expiration of the Term, we conclude that neither the statute nor the contract expresses a clear intent to provide appellants with this cause of action. Consequently, we decline to imply such a right of enforcement into either the statute or the contract. See Touche Ross, 442 U.S. at 571-72, 99 S.Ct. 2479; Ortega, 97 S.W.3d at 775-76.

We acknowledge that the AHDP and the LURA mandate that the housing restrictions shall remain effective “during the useful life” and “during the Term,” respectively. Yet, this alone does not provide appellants with a right to enforce the term provisions. The right to sue a property owner.based on its failure to make available the required number of low-income units is not identical to or inclusive of the right to hold the owner or proposed purchaser liable for misrepresenting to a government agency that the housing restrictions should be released because the property is dilapidated and irreparable. See Akinseye v. Bigos, 75 F.Supp.2d 976, 979-80 (D.Minn.1998) (reaching similar conclusion that low-income tenants’ right to enforce AHDP housing restrictions did not incorporate right to enforce rent limitations, despite fact that occupancy requirements mandated units be “maintained as affordable,” because rent limitations were not expressly included in list of provisions expressly enforceable by third-party beneficiaries).

Furthermore, even if the statute or contract entitled low-income tenants to enforce the term provisions, BFY and Embrey were not the ultimate decision-makers responsible for determining that the Term had expired. That was the duty of the relevant government agencies, the TDHCA and the FDIC (as predecessor to the RTC). The LURA specified that the Term would expire if “the RTC or the Agency determines ... (i) that all or a portion of the Property is obsolete as to physical condition ... making it unusable for housing purposes, and (ii) that no reasonable program of modifications is financially feasible to return the Property or a portion of the Property to useful life.” (Emphasis added.) Additionally, the 1998 FDIC Affordable Housing Program Compliance Manual stated, “[u]pon request from the property owner, monitoring agencies may approve a release from the LURA when one of the conditions discussed [in the LURA term provision] is documented. Upon recommendation by the Agency, the FDIC will execute the release. ... If a monitoring agency is satisfied that one of these conditions is present, release from the LURA may be authorized by the FDIC and given to the owner.” (Emphasis added.)

Here, this exact procedure was followed. First, the property owners (BFY) and the proposed purchaser (Embrey) requested that the monitoring agency (the TDHCA) release the LURA because the property was physically obsolete and financially infeasible to repair. BFY and Embrey provided documentation — an independently prepared inspection report and redevelopment proposal — to support their claims about the condition of the property. The TDHCA conducted its own inspection of the property, verified the property’s dilapidated and irreparable condition, and recommended to the FDIC that the LURA be released. Based on the TDHCA’s recommendation, the FDIC then authorized the release of the LURA.

Neither the AHDP nor the LURA create an express or implied cause of action that would entitle appellants to collect damages from BFY or Embrey for misrepresenting the condition of the property to the state and federal agencies. Thus, appellants lack standing to sue appellees in this case, and their first issue is overruled.

Because the trial court did not specify its grounds for granting BFY’s and Em-brey’s summary judgment motion, and because the lack of standing was an appropriate ground on which to grant summary judgment, we do not reach appellants’ second and third issues challenging the two alternative grounds asserted for summary judgment. See Urena, 162 S.W.3d at 550.

Motion for Leave to Amend and Dismissal of Fraud Claim

After the trial court granted the second summary judgment in favor of BFY and Embrey, appellants sought leave to file a fifth amended petition in order to clarify their pleadings on fraud. In them form previous petitions, appellants had focused their fraud claims on the alleged misrepresentations that BFY and Embrey made about the condition of the property to the TDHCA and the FDIC in order to induce the release of the LURA. In their proposed fifth amended petition, which was attached to their motion for leave, appellants asserted that BFY and Embrey committed fraud by misrepresenting the condition of the property to the tenants in order to continue collecting rent after determining that the property was unsuitable for habitation. BFY opposed the motion for leave to amend. Thereafter, the trial court denied appellant’s motion and issued a final judgment against appellants on all claims.

In appellants’ fourth and fifth issues, they assert that the trial court erred by refusing to grant them leave to amend their petition and by dismissing the fraud claim included in their fifth amended petition. However, because the trial court refused to consider their fifth amended petition, the court did not actually “dismiss” the new fraud claim contained within that pleading. Hence, appellants’ fifth issue is overruled and the only remaining issue is whether the trial court erred in denying appellants’ motion for leave to amend.

We review a trial court’s denial of leave to amend for an abuse of discretion. Tex-Air Helicopters, Inc. v. Galveston County Appraisal Review Bd., 76 S.W.3d 575, 581 (TexApp.-Houston [14th Dist.] 2002, pet. denied). Pursuant to Texas Rule of Civil Procedure 63, a party is entitled to amend its petition “within seven days of the date of trial or thereafter, ... unless there is a showing that such filing will operate as a surprise to the opposing party.” Tex.R. Civ. P. 63. A summary judgment proceeding is a trial within the meaning of Rule 63. Goswami v. Metropolitan Sav. & Loan Assoc., 751 S.W.2d 487, 490 (Tex.1988). “[T]he trial court may conclude that the amendment is on its face calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial.” Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 940 (Tex.1990); Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex.1980).

Appellants claim that, because no trial date was set at the time they filed their motion, they were not within the seven-day window and, therefore, should have been permitted to amend their pleadings. In making this argument, however, appellants ignore that a summary judgment proceeding is considered a trial for Rule 63 purposes. Goswami, 751 S.W.2d at 490. Appellants’ motion for leave was not filed until after two separate summary judgments had been entered against them, including one that dismissed their related fraud claims. In denying their motion for leave, the court stated that it believed the issues proposed in appellants’ fifth amended petition had been disposed of by its prior rulings. See Mitchell v. LaFlamme, 60 S.W.3d 123, 132 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (trial court should deny motion for leave to amend if it has already rendered judgment).

Appellants admit that they had been aware of the facts to support their new fraud claim — regarding the misrepresentations made by BFY and Embrey to the tenants — since the beginning of the lawsuit. In fact, they stated in their motion that the new claim “relies on the same facts as were the basis for the implied warranty of habitability claim,” upon which summary judgment had already been granted, and that the claim “has been the basis of their pleadings since the day this action was filed.” Yet, in the two and a half years that their suit was pending, during which appellants filed four amended petitions, they never asserted this fraud claim. See Sosa v. Corpus Christi, 739 S.W.2d 397, 400 (Tex.App.-Corpus Christi 1987, no writ) (in context of trial amendment, court should deny leave to amend if “new matter was known or could have been known through the exercise of due diligence ... at a time [that] would have enabled [claimant] to include the claim in his formal pleadings.”)

Because appellants failed to seek leave until after two summary judgment proceedings had been completed, and because they had been aware of the necessary facts to support their amended claim for over two years, the trial court correctly denied their motion. Upon appellees’ objections to appellants’ attempt to amend their pleadings at this late stage, it was not an abuse of discretion for the trial court to determine that, on its face, the amendment was calculated to cause surprise or that it would unfairly prejudice BFY and Embrey and cause unnecessary delay. See Greenhalgh, 787 S.W.2d at 940. Appellants’ fourth issue is overruled.

CONCLUSION

Summary judgment was properly granted in favor of BFY and Embrey because appellants do not have standing as third-party beneficiaries to either the federal statute or the agreement entered pursuant to that statute’s requirements. It was also proper for the trial court to deny appellants’ motion for leave to amend their petition a fifth time and to refuse to consider the new claim asserted in the proposed fifth amended petition. Having overruled appellants’ issues, we affirm the final judgment of the trial court.

        . Appellants Witkowski and Warner alternatively moved for rehearing en banc. We overrule that motion.

      . Pearl Witkowski was originally joined by her daughter, Delores, as a plaintiff and class representative. Subsequently, Delores withdrew, and Phillips was added as a representative.

      . The appellants challenge the accuracy of these statements, urging that a proper inspection and financial analysis were never done and that the appellees purposefully misrepresented the status of the property in order to fraudulently induce the TDHCA to release the LURA.

      . Embrey was, ultimately, not the purchaser of the property. On May 11, 1998, Embrey entered an escrow transfer agreement to assign its interest in the purchase of River Woods to TCR South Central, Inc., who then assigned the interest to South Congress Reserve Limited Partnership. The purchase was thereafter completed by South Congress Reserve, which was not named as a party to this suit.

      . BFY asserts that the trial court's order on the first summary judgment motion dismissed all three claims that were addressed in its first motion because appellants conceded at the hearing that the only remaining claim of the three was the breach of implied warranty of habitability claim. The trial court later clarified, in issuing its final judgment disposing of all claims, that the breach of fiduciary duty and unjust enrichment claims had not been disposed of by the first order. In any event, the outcome of this appeal is not affected by whether these two claims were disposed of by the first summary judgment or by the final judgment.

      . See E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).

      . Although the trial court had already resolved two summary judgment motions against appellants that collectively addressed each claim raised by appellants, the court subsequently issued a final take-nothing judgment to clarify that all of appellants’ claims were dismissed, given the dispute addressed in footnote five about whether the first summary judgment had disposed of one claim or three claims.

      . Appellants additionally challenge the summary judgment by claiming that they stated viable claims against the appellees and that the appellees are not entitled to immunity under the Noerr-Pennington doctrine — the alternative grounds on which appellees sought summary judgment. We do not reach these issues.


source: Caselaw Access Project

author: LEE ANN DAUPHINOT, Justice.

license: Public Domain

text:
    Charles Glen HYDE, Hyde-Way, Inc. and Aviation Utilities Services, Inc., Appellants, v. Jimmy RAY and Trent Cragin, Appellees.
    No. 2-03-123-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 8, 2005.

      Larry M. Lesh, Law Office of Larry M. Lesh, Dallas, for appellant.
    John E. Kelsey, Richard H. Kelsey and Lawrence C. Collister, Kelsey, Kelsey & Collister, Denton, for appellee.
    PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

This is an accelerated appeal from an order granting a temporary injunction compelling Appellants to restore, reconnect, and maintain a continued supply of water and water service to Appellees’ airport properties. We hold that because the trial court did not have jurisdiction to order the temporary injunction, the temporary injunction is void. Accordingly, we vacate the trial court’s order granting the injunction, dissolve the temporary injunction, and remand this case for proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Northwest Regional Airport is located near Roanoke, Texas, and is owned by Texas Air Classics (TAC). Aviation Utilities Services, Inc. (AUSI) operates a water system at the airport. Hyde-Way, Inc., was both entities’ predecessor in interest. TAC, AUSI, and Hyde-Way are or were all operated by Charles Glen Hyde.

In 1991, Jimmy Ray purchased a hangar at the airport. Deed restrictions prohibited the hangar from being used for residential purposes, but Ray constructed an apartment in the hangar anyway and occupied it as his permanent residence. In 2002, Ray sold the apartment to Trent Cragin, who uses the property for commercial purposes. Ray moved his residence to an apartment in a different hangar at the airport.

Since 1982, the water source to the airport’s property owners had been a well operated by Hyde-Way and then AUSI. Ray did not use this well for drinking, but used it for all other purposes, including bathing and shaving.

By letter dated August 15, 2001, Hyde advised water users, including Ray, that AUSI’s well had gone dry and that AUSI had drilled a new well. He said that AUSI was requesting assistance from hangar owners in defraying the expenses of operating a new well. Ray did not respond to this letter.

By letter dated December 5, 2002, Hyde advised water users, including Appellees Ray and Cragin, that AUSI’s water service was entirely within the town of North-lake’s authorized water service area. Hyde informed the users that the Texas Commission on Environmental Quality (TCEQ) had warned AUSI, by letter dated September 19, 2001, that it was illegal for third parties, such as AUSI, to provide water service within another entity’s authorized service area and that new property owners must make arrangements with the only legally recognized entity, North-lake, for water services. The letter urged users to contact Northlake if they had recently transferred ownership. Hyde personally told Ray that he would be cutting off the water to Appellees’ hangars because they were new customers, each having recently transferred ownership. However, Appellees refused to get water from Northlake because it was “not economically feasible” to do so.

On February 14, 2003, Appellees filed suit against Hyde and Hyde-Way. They requested a declaratory judgment establishing that Hyde and Hyde-Way were responsible for providing them water and that they be enjoined from terminating the water supply. They also claimed that Hyde and Hyde-Way were liable for breach of contract. Further, they requested a temporary restraining order and a temporary injunction restraining Hyde and Hyde-Way from terminating water services, and they sought damages if the in-junctive relief did not dispose of all issues. The trial court issued the temporary restraining order on the same day that Ray and Cragin filed suit.

On March 18, 2003, Hyde and Hyde-Way filed a plea to the jurisdiction contending that the action was within the jurisdiction of the town of Northlake and/or TCEQ and therefore beyond the subject matter of the district court.

While the case was pending and after the temporary restraining order had lapsed, on April 12, 2003, Hyde, as president of AUSI, terminated the water supply and service to Appellees’ properties. Hyde reasoned that his actions were “in compliance with TCEQ” because in 2002 Cragin acquired ownership of Ray’s hangar and Ray acquired ownership of a new hangar; they were thus “new service connections” acquired after the September 19, 2001 letter, and consequently would require new service agreements from North-lake.

On April 25, 2003, Appellees filed an amended petition to add AUSI as a defendant and to add a claim for fraudulent or negligent misrepresentation. Appellees also filed a response to the plea to the jurisdiction, claiming that no exclusive jurisdiction lies with any environmental or administrative entity.

On April 30, 2003, the trial court denied Hyde and Hyde-Way’s March 18, 2003 plea to the jurisdiction and issued a temporary injunction mandating that Appellants Hyde, Hyde-Way, and AUSI restore, reconnect, and maintain a continued supply of water and water services. The basis for the temporary injunction was that Appel-lees were irreparably injured because there was no viable source of water for them pending the outcome of the suit. The temporary injunction also enjoined Appellees from using the water for human consumption.

During the course of the case, Appellees again amended their petition to add TAC as a defendant in the suit. They also added many causes of action, including claims of violation of deed restrictions, misappropriation, conversion, theft, fraud, tortious interference with existing contractual relations, tortious interference with prospective business relations, and breach of duty to provide an accounting. Appellants and TAC filed a counterclaim for violation of deed restrictions.

In May 2003, Appellants filed in this court an accelerated appeal from the temporary injunction and an emergency motion to stay the injunction pending the appeal. On the same day, this court granted the stay motion, staying the temporary injunction.

On December 9, 2003, Appellees filed an emergency motion to modify or lift the stay, and on January 26, 2004, this court granted the motion. Thus, the stay was lifted and the temporary injunction once again became effective.

Following the filing of the Appellants’ notice of appeal, on June 4, 2003, the Executive Director of TCEQ submitted a preliminary report and petition to TCEQ, alleging that AUSI had committed numerous violations of the Texas Administrative Code, Health and Safety Code, and Water Code, and suggesting that TCEQ assess penalties and require certain actions of AUSI. AUSI filed a plea to the jurisdiction of the TCEQ proceedings, alleging that TCEQ lacked jurisdiction because AUSI does not provide water for human consumption and is not a public water system subject to regulation by TCEQ.

As a result of the TCEQ proceedings, on December 9, 2003, this court abated the appeal pending the disposition of those proceedings.

On January 24, 2005, TCEQ’s Administrative Law Judge (ALJ) denied AUSI’s plea to the jurisdiction and ordered that the parties proceed to set a hearing on the merits. However, on June 8, 2005, the ALJ granted TCEQ’s motion to dismiss the case without prejudice due to the unavailability of necessary witnesses. As a result, this court reinstated the appeal on the docket.

On appeal, Appellants argue that the trial court abused its discretion by ordering the temporary injunction because 1) the trial court lacked subject matter jurisdiction to grant such relief, 2) the temporary injunction potentially required Appellants to violate the law, 3) Appellants had no obligation to provide perpetual water supply to Appellees, and 4) Appellees failed to adduce the clear and convincing evidence required to support the mandatory relief granted by the temporary injunction.

II. LEGAL ANALYSIS

A. Standard of Review

Our review is strictly limited to whether the trial court abused its discretion in granting the temporary injunction. We may not substitute our judgment for that of the trial court by vacating or modifying an injunction simply because we would have decided otherwise. An abuse of discretion does not occur as long as there is some evidence to support the trial court’s decision. Furthermore, an abuse of discretion does not exist where the trial court bases its decision on conflicting evidence. As the reviewing court, we must draw all legitimate inferences from the evidence in a manner most favorable to the trial court’s order granting a temporary injunction and determine whether the order was so arbitrary as to exceed the bounds of reasonable discretion.

B. Subject Matter Jurisdiction

We first consider Appellants’ issue that the temporary injunction was improperly granted because the trial court lacked subject matter jurisdiction to grant such relief.

Appellees claim that by arguing that the trial court has no subject matter jurisdiction, Appellants are attempting to conduct an impermissible interlocutory appeal of their plea to the jurisdiction, which was denied by the trial court. Texas Civil Practices and Remedies Code Section 51.014(a)(4) specifically allows an appeal from an interlocutory order granting or refusing a temporary injunction. That section also allows an appeal from an interlocutory order granting or denying a plea to the jurisdiction filed by a “governmental unit.” On the other hand, orders overruling pleas to the jurisdiction by private parties are generally interlocutory and unappealable until a final judgment has been rendered. Appellants are appealing from the order granting the temporary injunction, not the plea to the jurisdiction. Significantly, Appellants are not questioning the trial court’s subject matter jurisdiction to hear the entire case. Rather, Appellants are only questioning the trial court’s jurisdiction to issue the injunction. Thus, this issue is not an impermissible appeal of Appellants’ plea to the jurisdiction, and this court must decide whether the trial court had jurisdiction to issue the injunction.-

Trial courts are courts of general jurisdiction. The Texas Constitution provides that a trial court’s jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by the Texas Constitution or other law on some other court, tribunal, or administrative body. By statute, trial courts have the jurisdiction provided by Article V, Section 8 of the Texas Constitution, may hear and determine any cause that is cognizable by courts of law or equity, and may grant any relief that could be granted by either courts of law or equity. Courts of general jurisdiction presumably have subject matter jurisdiction unless a contrary showing is made. A similar presumption does not exist for an administrative agency, which may exercise only those powers that the law, in clear and express statutory language, confers upon it.

Under the exclusive jurisdiction doctrine, the legislature grants an administrative agency the sole authority to make an initial determination in a dispute. An agency has exclusive jurisdiction when a regulatory scheme indicates that the legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. Because an agency’s power is derived from a statute, whether it has exclusive jurisdiction depends on statutory interpretation. If an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action. Until the party does so, the trial court lacks subject matter jurisdiction of the claims within the agency’s exclusive jurisdiction.

Because determining whether an agency has exclusive jurisdiction requires statutory construction and raises jurisdictional issues, it is a question of law we review de novo. As such, this court exercises its own judgment and the trial court’s discretion is afforded no deference. Our objective when construing a statute is to determine and give effect to the legislature’s intent. To ascertain that intent, we look first to the statute’s plain language and give words their ordinary meaning. We must view the statute’s terms in context and give them full effect. Further, we presume that the legislature acted with knowledge of the common law.

Section 13.042(e) of the Texas Water Code provides that the TCEQ has “exclusive original jurisdiction over water and sewer utility rates, operations and services not within the incorporated limits of a municipality exercising exclusive original jurisdiction over those rates, operations, and services.” Both rate and service are further defined only to include those pertaining to a “retail public utility,” and the purpose of Chapter 13 is to regulate retail public utilities. Thus, Section 13.042(e) does not apply to Appellants unless they are “retail public utilities.” A “retail public utility” is defined as “any person, corporation, public utility, or [other entity] operating, maintaining, or controlling in this state facilities for providing potable water service or sewer service, or both, for compensation.” “Potable water” is not defined in Chapter 13 of the Water Code, but is defined by the Administrative Code as “water that is used for or intended to be used for human consumption or household use.” Thus, to determine whether Appellants are “retail public utilities,” we must determine whether Appellants 1) provide potable water service or sewer service, and 2) whether they do so for compensation.

Appellees argue that because the water is not potable, the first portion of the definition excludes Appellants. However, looking to the statute’s plain language and viewing the terms in context, we believe that the word “potable” only modifies “water service,” rather than “sewer service.” Thus, because Ray admitted that he used and will use the water to flush his toilets, we believe that Appellants do in fact meet the first portion of the definition by providing sewer service, regardless of whether or not the water was potable.

Still, Appellants are not “retail public utilities” if they do not provide the service “for compensation.” Appellants charged Appellees and other airport occupants monthly license fees for all of the airport subdivision services, including maintenance of the taxiways. Appellees claim that some of these funds have been used towards expenses associated with the water production and distribution system. However, at the hearing on the temporary injunction, Hyde contended that none of the money collected as license fees ever “ended up in” the water system. Also, in a letter exhibit to the court and throughout the case, Appellants asserted that they were providing “free water” to the airport property owners.

Regardless, separate and apart from the monthly license fee payments, Ray has made two payments for his water supply. At the temporary injunction hearing, Ap-pellees offered and the trial court admitted into evidence a 1993 letter from Hyde, as president of AUSI, to all water users. The letter, in relevant part, stated that:

free water to all airport hangars will be discontinued. The water system has been sold to [AUSI]. If you signed a water agreement (see sample) upon purchase of your property, it will be honored provided the tap fee is paid on or before December 31, 1993, otherwise a $500.00 tap fee will be charged to all hangars.
Over the past eleven years Hyde-Way, Inc., has given away over $190,000 of free water, but ... this service can no longer be provided free of charge.

Then, in 1995, Ray received another letter from Hyde stating that because there had been a major breakdown of the water system, AUSI was out of money. The letter continued that:

if each large hangar would contribute $250.00 ... the repair reserve will be reinstated ... There will be future water problems that will require funding. If a voluntary contribution is not made, there will be no other alternative but to discontinue water service to that hangar.
Please make checks payable to [AUSI],

Ray testified that he paid $250.00 in 1993 in response to the first letter and paid another $250.00 in 1995 in response to the second letter. Thus, Ray — and perhaps others — have made payments to Appellants in exchange for their continued water services. Although these payments were termed “voluntary,” occupants such as Ray seemed to have little choice — they could “contribute” to the water fund or have their service terminated. Even if the water itself is now provided at no cost to those receiving it, as Appellants contend, the service has been provided for compensation. Thus, because we find that the water service provided to Ray, and possibly other occupants of the airport, was for compensation, we hold that Appellants do qualify as “retail public utilities.” Therefore, Section 13.042(e) governs if the issue is one that falls within TCEQ’s exclusive jurisdiction; that is, if the issue is water or utility rates, operations, or services.

BCY Water Supply Corp. addressed a similar fact situation involving the continuation of water supply and Section 13.042(e). BCY was a corporate supplier of water that promised to supply water to Residential Investments’ proposed new subdivision. BCY later informed Residential Investments that BCY could not supply the water to the subdivision as initially indicated, and Residential Investments sued BCY, alleging that BCY had improperly denied water services to Residential Investments. Subsequently, Residential Investments amended its pleadings, deleting its denial of service allegations and adding common law claims of negligent misrepresentation and promissory estoppel. BCY objected to the trial court’s jurisdiction based on Section 13.042. The appellate court ultimately held that the trial court had jurisdiction over the common law causes of action. However, the appellate court specifically stated that its reason for finding that the trial court had jurisdiction was because Residential Investments had abandoned its denial of service cause of action when it amended its petition. The court interpreted the statutory language of Section 13.042 and denied that the TCEQ had exclusive jurisdiction of all claims “arising from” the provision. The court found that it had to presume that because the legislature chose not to include the words “arising from” in the provision, it intended to give the TCEQ jurisdiction over those matters directly related to water and utility rates, operations, and services, “such as was initially pleaded by Residential Investments in the instant case, but later abandoned.” Thus, the court signaled that if Residential Investments had continued to pursue the issue of whether BCY had improperly denied it water service rather than amending its petition to exclude it, this issue would have been under the exclusive jurisdiction of the TCEQ.

In their motion for temporary injunction, Appellees sought an injunction ordering Appellants to restore, reconnect, and maintain a continued supply of water and water service to Appellees’ airport properties. The temporary injunction was granted and compels these actions. Thus, we hold that the temporary injunction orders actions directly related to water service and invades the exclusive jurisdiction of TCEQ under Section 13.042(e). Therefore, the trial court lacked jurisdiction to order the temporary injunction, and abused its discretion by doing so. Because the trial court lacked jurisdiction to order it, the temporary injunction is void. We do not address the trial court’s subject matter jurisdiction of the causes of action pending below, nor do we reach Appellants’ other issues.

Because we have held that the trial court lacked jurisdiction to issue the temporary injunction and that the temporary injunction is therefore void, we vacate the order granting the temporary injunction, dissolve the temporary injunction, and remand this ease for proceedings consistent with this opinion.

      . See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002); Mabrey v. SandStream, Inc., 124 S.W.3d 302, 309 (Tex.App.-Fort Worth 2003, no pet.); Gen. Fin. Servs., Inc. v. Practice Place, Inc., 897 S.W.2d 516, 519 (Tex.App.-Fort Worth 1995, no writ).

      . Mabrey, 124 S.W.3d at 309; Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 598 (Tex.App.-Amarillo 1995, no writ); see also Butnaru, 84 S.W.3d at 211.

      . Butnaru, 84 S.W.3d at 211; Mabrey, 124 S.W.3d at 309.

      . Mabrey, 124 S.W.3d at 309.

      . Id.; Bell v. Tex. Workers Comp. Comm’n, 102 S.W.3d 299, 302 (Tex.App.-Austin 2003, no pet.); Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex.App.-Dallas 1993, no writ); Bertotti v. C.E. Shepherd Co., 752 S.W.2d 648, 651 (Tex.App.-Houston [14th Dist.] 1988, no writ).

      . Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2005).

      . Id. § 51.014(a)(8).

      . Tex. State Bd. of Exam'rs in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242, 243 (1961).

      . Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.2002); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000).

      . See Tex. Const. art. V, § 8; Subaru, 84 S.W.3d at 220.

      . See Tex. Gov't Code Ann. §§ 24.007-.008 (Vernon 2004).

      . Subaru, 84 S.W.3d at 220.

      . Id. (citing Key W. Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 848 (1961)).

      . See Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000).

      . Subaru, 84 S.W.3d at 221.

      . Id.

      . Bennett, 35 S.W.3d at 15.

      . Subaru, 84 S.W.3d at 221.

      . Id. at 222; see also El Baso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

      . Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998).

      . See Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999).

      . Id.

        . Id.

      . Id.

      . Tex. Water Code Ann. § 13.042(e) (Vernon 2000).

      . Id. § 13.002(17), (21) (Vernon Supp.2005).

      . Id. § 13.001(c) (Vernon 2000).

      . Id. § 13.002(19) (emphasis added).

      . 30 Tex. Admin Code § 291.3(30) (2005).

      . See Tex. Water Code Ann. § 13.042(e).

      . BCY Water Supply Corp. v. Residential Inv., Inc., 170 S.W.3d 596, 601 (Tex.App.-Tyler 2005, pet. denied); Lake Country Estates, Inc. v. Toman, 624 S.W.2d 677, 681 (Tex.App.-Fort Worth 1981, writ ref’d n.r.e.).

      . BCY Water Supply Corp., 170 S.W.3d at 599.

      . Id.

      . Id.

      . Id. at 601.

      . Id.

      . Id. at 600.

      . Id. at 601.

      . See Tex.R.App. P. 47.1.


author: HOLLIS HORTON, Justice.

text:
    MONTGOMERY COUNTY HOSPITAL DISTRICT, Appellant, v. Tonya SMITH, Appellee.
    No. 09-05-137 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 27, 2005.
    Decided Dec. 15, 2005.

      Phillip W. Bechter, Schwartz, Junell, Greenberg & Oathout, LLP, Houston, for appellant.
    Kevin L. Hood, Fabrega, Hood, Raynes & Fass, LLP, Houston, for appellee.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

The trial court denied a plea to the jurisdiction filed by the Montgomery County Hospital District (hereafter “MCHD”). The MCHD appeals the trial court’s denial. We reverse and render.

In this suit, Tonya Smith, formerly employed by the MCHD, alleges the hospital terminated her in violation of Section 554.002(a) of the Whistleblower Act. Tex. Gov’t Code Ann. §§ 554.001-.010 (Vernon 2004). Smith contends that her termination occurred as a consequence of her report to one of MCHD’s board members that James Hamilton, MCHD’s CEO, entered into a contract to sell a building owned by the MCHD. Smith alleges that her report of the MCHD’s entering into this contract resulted in a change in attitude toward her by Hamilton, and led to a concerted effort in which he sought to find “any item to criticize” her.

Several months later, Smith claims that Hamilton reassigned her from her duties as a liaison between the MCHD’s board and its employees to duties in a storage warehouse. On November 20, 2003, seven days after being reassigned to the warehouse, Smith asserts that Hamilton fired her under the pretext that “[it’s] just not working out.” The MCHD denied Smith’s claims, and asserted that Smith’s termination was based on her poor job performance and conduct unrelated to her retaliation claim.

Following her termination, the MCHD offered Smith a severance package. The MCHD offered to continue to pay Smith through the end of December, 2003 or for approximately six weeks following her termination, in exchange for a release of her claims. Ultimately, Smith rejected the MCHD’s severance offer.

On December 1, 2003, Smith alleges that she requested Hamilton, MCHD’s CEO, to “reconsider his decision.” On that date, Smith e-mailed a request to Hamilton. Smith’s request is central to the resolution of the issues on appeal. Her e-mail to Hamilton states:

From: Tonya Smith [e-mail address deleted]
Sent: Monday, December 01, 2003 9:49 AM
To: Hamilton, James
Subject: Release of Claims
Importance: High
Mr. Hamilton,
I hope that you had a good holiday with your family. I have spoken to Stacy regarding the release of claims document. She told me that you were standing by the number of 4,200 for my release. I am sincerely asking you to please reconsider. I know that you have a good heart and that is why I am even asking again. It would help my family out tremendously with the upcoming holidays and such to have the extra monies to keep us afloat for a little while. Again, I am sincerely asking to please, please reconsider. When I spoke to Greg he said that you were able to, but had to make the decision. I enjoyed working with you and the organization and am truly sorry for the way things worked out.
Please let me know so I may come to the District to finalize everything. Sincerely,
Tonya

The parties disagree on the meaning of Smith’s December 1, 2003 e-mail to Hamilton. Smith contends her e-mail constituted an appeal of Hamilton’s decision to terminate her employment. On the contrary, the MCHD contends the e-mail was not an appeal of Smith’s termination and points to Smith’s deposition testimony where Smith testified she did not intend her December 1, 2003 e-mail to constitute an appeal of her termination.

Alternatively, if the December 1, 2003 email is not sufficient to constitute an appeal of Smith’s termination, Smith invites us to create a judicial exception to Section 554.006 of the Texas Government Code, wherein the Legislature requires that a public employee invoke the applicable grievance or appeal procedure before filing a suit. Smith argues that appealing her termination through the MCHD appeal procedures would have been futile since Hamilton was her direct supervisor and the MCHD’s CEO. In response, the MCHD asserts that futility is not a recognized exception to the administrative appeal requirements established by the Legislature.

Finally, Smith asserts that complying with the grievance or appeal procedures of a governmental entity is procedural, and not jurisdictional. As a result, Smith contends that the remedy for any failure on her part to comply with the MCHD’s appeal procedures is to abate her claims to allow them to go through the MCHD’s grievance procedures. The MCHD, on the other hand, asserts that Smith’s compliance with its appeal process is jurisdictional. As a result, the MCHD argues that we are required by law to dismiss Smith’s suit because it remains immune from her Whis-tleblower claims when its appeal process is not invoked as required by the Act.

To resolve this appeal, we must consider two issues. Did Smith initiate the MCHD’s disciplinary appeal process? If she did not initiate the appeal process, is her failure to do so a jurisdictional or procedural defect in her claim? We hold that Smith did not initiate the appeal process. We further hold that Smith’s failure to initiate an appeal under the MCHD’s appeal procedures is a jurisdictional defect that deprives the trial court of jurisdiction over her suit. As a result, we dismiss Smith’s claims against the MCHD.

STANDARD OF REVIEW

The Montgomery County Hospital District was created under the authority of the Texas Constitution and statute, Act of May 12, 1977, 65th Leg., R.S., ch. 258,1977 Tex. Gen. Laws 678-687. See Tex. Const. ART. IX, § 9; Tex. Health & Safety Code Ann. ch. 286 (Vernon 2001 & Supp.2005). No party contends that the MCHD is not either a state or local governmental entity with respect to Chapter 554 of the Texas Government Code, and Smith specifically alleged that the MCHD “is a political subdivision of the State of Texas.”

A governmental unit, as statutorily defined, may file an interlocutory appeal from a denial of its plea to the jurisdiction. tex. Crv. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2005); § 101.001 (Vernon 2005). The definition of “governmental unit” in Section 101.001 does not specifically include hospital districts, but the statutory definition of governmental unit is nevertheless broad, and includes any “institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or laws passed by the legisla-ture_” See tex. Crv. Prac. & Rem.Code Ann. § 101.001 (3)(D) (Vernon 2005). Moreover, no party contends that the MCHD does not have the right to an interlocutory appeal, or that the MCHD does not qualify as a governmental unit under the broad definition contained in section 101.001 of the Civil Practice and Remedies Code. Thus, we have jurisdiction over this appeal.

A party, by asserting a plea to the jurisdiction, contests the trial court’s authority over the subject matter of the dispute. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex.1999). We review the district court’s ruling on a plea to jurisdiction under a de novo standard. State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). In evaluating MCHD’s plea to the jurisdiction, it is appropriate to consider relevant evidence when necessary to resolve the plea. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). “[I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004).

In this case, the only evidence proffered by Smith that she argues constituted her attempt to comply with MCHD’s disciplinary appeal procedures is her e-mail dated December 1, 2003. The MCHD’s receipt of the e-mail, and its content, are not disputed. Also, the MCHD submitted a copy of its policies and procedures manual to the trial court, and there is no evidence that these were not the policies and procedures relevant to Smith’s termination. Thus, we review the trial court’s decision regarding whether Smith’s e-mail initiated the MCHD’s appeal process de novo.

GRIEVANCE AND APPEAL PROCEDURES

The evidence is undisputed that the MCHD gave Smith a copy of its policy and procedure manual when she worked for the district. MCHD’s policy # 10-413 described MCHD’s disciplinary appeal process, in pertinent part, as follows:

DISCIPLINARY APPEAL PROCESS

A staff member wishing to appeal a disciplinary action shall notify in writing the Chief Administrative Officer within five (5) days of the disciplinary action.

The Chief Administrative Officer may elect to take the following action:

1. Review the request and deny the appeal
2. Review the request and remand the decision to the Department Manager for consideration
3. Grant the request a formal review Action Available to the Chief Administrative Officer:
Should the Chief Administrative Officer grant the appeal, a hearing will be held at a mutually convenient time for the parties involved. Upon hearing both sides, the Chief Administrative Officer may elect to take the following action:
1. Reverse the action
2. Remand the decision to the Department Manager for reconsideration
3. Uphold the decision of the Department Manager
4. Enact a more severe disciplinary action
After exhausting due process remedies within the department, the employee may appeal the Chief Administrative decision to the Board of Directors within established policies of the Board of Directors.

The Texas Whistleblower Act prevents state or local governmental entities from suspending, terminating, or taking an adverse personnel action against a public employee who in good faith reports a violation of law by the governmental entity to an appropriate law enforcement authority. tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004). With respect to Texas Whistle-blower claims, the Legislature, through the Whistleblower Act, waived the government’s sovereign immunity “to the extent of liability for the relief allowed under this chapter for a violation of this chapter.” tex. Gov’t Code Ann. § 554.0035 (Vernon 2004). However, in its efforts to protect public employees from unlawful retaliatory actions of governmental employers, the Legislature did not grant aggrieved public employees the right to proceed directly to court. Section 554.006 of the Texas Government Code provides:

(a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.
(b) The employee must invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable diligence.

tex. Gov’t Code Ann. § 554.006 (Vernon 2004).

Our court previously stated that, under this provision of the Government Code, “[t]he Whistleblowers’ Act requires invocation of the appeal procedure by the public employee bringing the claim.” Univ. of Tex. Med. Branch at Galveston v. Savoy, 86 S.W.3d 782, 785 (Tex.App.-Beaumont 2002, pet. denied). The Texas Supreme Court, in University of Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex.2005), also recently stated, “Before suing under the Texas Whistleblower Act, a public employee must timely initiate his employer’s grievance or appeal procedures relating to employee discipline.”

In evaluating whether Smith’s December 1, 2003 e-mail initiated the MCHD’s appeal process, we note that there are no established standards by which to judge whether a public employee has initiated a grievance and appeal procedure. The MCHD appeal procedure requires that its employee’s notice of appeal for disciplinary actions be made in writing to its Chief Administrative Officer, and that it be made within five days of the disciplinary action. The MCHD’s procedures do not require that the notice of an employee’s appeal be made on a particular form or contain any particular language.

In reviewing potential standards that might be applied to Smith’s e-mail to determine whether it constitutes an appeal of her termination, we are aware of cases interpreting Civil Procedure Rule 47, which requires that pleadings give fair notice to opponents of the claim involved. Tex.R. Civ. P. 47(a). In numerous cases, courts have interpreted whether various pleadings comply with the fair notice requirement. See .e.g. Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607, 615-17 (Tex.2004)(finding that a petition asserting retaliatory discharge and wrongful discharge was sufficient to give opponent fair notice of discrimination claim); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-897 (Tex.2000)(finding that the fair notice standard examines whether opponent can ascertain nature and basic issues of controversy and what testimony will be relevant); Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993)(finding that pleading negligent infliction of emotional distress was insufficient to put opponent on fair notice of claim asserting grossly negligent infliction of emotional distress); Stoner v. Thompson, 578 S.W.2d 679, 683-684 (Tex.1979)(pleading must give fair notice of claims to opposing party); Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex.1977)(finding that pleadings are liberally construed, and court looks to the pleader’s intent even when some element of that cause of action is not specifically alleged); Gulf Colo. & S.F. Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963)(finding that every fact is supplied that can be reasonably inferred from what is stated, even if an element of a cause of action is not stated).

Additionally, in University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351 (Tex.2004), the Texas Supreme Court considered whether a public health care provider, which allegedly caused a birth defect, received notice of a malpractice claim as required by the Tort Claims Act. The child’s father called the health care provider following the birth of his child and informed the provider that his child was born with a birth defect. Loutzenhiser, 140 S.W.3d at 357. However, the father did not notify the health care provider that he intended to claim that his child’s birth defect had been caused by care rendered by the health care provider. Id. The Supreme Court concluded that the telephone call did not give the health care provider notice under the Tort Claims Act and required the claimant to provide a notice that made the health care provider subjectively aware that it was at fault for the alleged deformity. Id. at 358. However, the notice language of the Tort Claims Act varies from the notice language of the Whistleblower Act. Compare tex. Civ. PRAC. & Rem.Code Ann. § 101.101(a) (Vernon 2005) with tex. Gov’t Code Ann. § 554.0035 (Vernon 2004).

In the absence of a statutory standard or a standard created by an employee manual detailing the required contents of a public employee’s notice of appeal, we hold that the notice must give the employer fair notice that the public employee desires to appeal the employer’s disciplinary decision and fair notice of the decision made by the employer from which the employee desires to appeal. By being given such a notice, the employer will be aware that its employee has appealed from its disciplinary decision and will know which of its employment decisions are being made the subject of its appeal process. We further hold that the public employee’s notice of appeal must be given not later than the ninetieth day after the date the alleged violation occurred, or was discovered by the employee through reasonable diligence, in order to meet the "Whistleblower Act’s notice requirement. tex. Gov’t Code Ann. § 554.006 (Vernon 2004).

The disciplinary decisions at issue in this case are Smith’s reassignment and her termination. She sent her e-mail on the eleventh day after her termination, rather than within five days as required by MCHD’s policy manual. Although Smith’s e-mail was filed late under MCHD’s policy manual, her e-mail fell within the ninety day period allowed under the Whistleblower Act. See id. Because the e-mail that arguably constitutes Smith’s notice of her disagreement with an aspect of her severance was sent within ninety days of her termination, and within ninety days of her reassignment to the warehouse, we consider the e-mail to be timely under the deadlines established by the Wdiistleblower Act.

We next consider whether the content of Smith’s December 1, 2003 e-mail constitutes a notice of appeal of her reassignment or termination under the MCHD employment manual, which are the issues she complains about in her suit. Smith’s December 1, 2003 e-mail makes no reference to Smith’s desire to initiate MCHD’s appeal and grievance process. Importantly, Smith does not mention that she wants the issue of her reassignment or her termination reconsidered. In this e-mail, Smith’s only request to reconsider concerns the amount she was offered in severance pay. However, in her lawsuit Smith makes no complaint that the MCHD’s severance offer was less than that received by similar employees under similar circumstances.

We conclude that no reasonably prudent employer could have been subjectively aware that Smith, by virtue of this e-mail, desired to invoke the MCHD’s disciplinary appeal process with respect to her termination or job reassignment. We hold that Smith’s e-mail did not give the MCHD fair notice of her desire to invoke the MCHD’s appeal and grievance process with respect to her termination or reassignment. Accordingly, we hold that as a matter of law Smith failed to initiate MCHD’s grievance or appeal process with respect to the complaints she asserts in her suit.

IMMUNITY

Recently, the Texas Supreme Court expressly declined to resolve whether the failure of an aggrieved public employee to submit a Wdiistleblower claim to his employer’s grievance procedure is jurisdictional. Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631, 632-38 (Tex.2005). In this ease, however, we are required to decide the issue. If the failure to give notice and invoke grievance procedures is jurisdictional, we would dismiss Smith’s claims. On the other hand, if the Legislature intended to waive immunity when a public employee fails to initiate her employer’s grievance procedures, we would abate Smith’s claims to allow her to engage in MCHD’s grievance and appeal process.

In general, the State is immune under the doctrine of sovereign immunity absent an express waiver by the entity of its immunity. Miranda, 133 S.W.3d at 224. “Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). “Courts often use the terms sovereign immunity and governmental immunity interchangeably.” Id.

With respect to Whistleblower claims, the Texas Government Code contains a limited waiver of sovereign immunity, tex. Gov’t Code ANN. § 554.0035 (Vernon 2004) provides that, “[sovereign immunity to suit is waived and abolished to the extent of liability” created by the Whistleblower Act. Also, this same provision contains a waiver to suit: “A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter.” Id. Thus, the Legislature appears to have used the term sovereign immunity to refer to both types of immunity in the Whistleblower Act.

In analyzing statutory waivers of immunity involving governmental entities, we note that section 311.034 of the Code Construction Act provides: “In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” tex. Gov’t Code Ann. § 311.034 (Vernon 2004). Therefore, in evaluating the Legislature’s intent, we apply the clear and unambiguous language rule to resolve whether the Legislature waived sovereign or governmental immunity when a public employee fails to initiate her employer’s grievance and appeal process. Compare tex. Gov’t Code ANN. § 311.034 (interpreting statutes that waive sovereign immunity) with tex. Gov’t Code Ann. § 554.0035 (Vernon 2004)(establish-ing limited waiver of immunity under Whistleblower Act).

“It is settled in Texas that for the Legislature to waive the State’s sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature’s waiver of immunity.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003). “Second, when construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity.” Id. at 697.

Section 554.006(a) of the Government Code creates a limitation on a public employee’s right to file suit, and this section is found in the same chapter that creates the public employee’s rights and remedies in Whistleblower cases. It provides:

(a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.

tex. Gov’t Code Ann. § 554.006(a) (Vernon 2004) (emphasis added). Thus, the Legislature has expressly decreed that Whistle-blower Act claimants “must” initiate the grievance or appeal process “before suing.” The Code Construction Act states that the word “ ‘[m]ust’ creates or recognizes a condition precedent.” tex. Gov’t Code Ann. § 311.016(3) (Vernon 2005).

We also find guidance on the issue of whether the failure to give notice under the Whistleblower Act is jurisdictional from the Texas Supreme Court’s analysis in Loutzenhiser. In reaching the conclusion that the failure to give proper notice under the Tort Claim’s Act was not jurisdictional, the Court contrasted the Tort Claims Act’s notice provision that the governmental unit “is entitled to receive notice” with statutes that use the word “must.” Loutzenhiser, 140 S.W.3d at 359-60. In part, because the Tort Claims Act did not state that the claimant “must” give notice, the Supreme Court held that a claimant’s failure to give the notice required by the Tort Claims Act “does not deprive a court of subject matter jurisdiction over an action on the claim.” Id. at 362. The Court explained, “The use of ‘is entitled to’ rather than ‘must’ — which was surely an intentional choice by the codifiers in deciding to abandon ‘shall’ — is therefore some indication that the Legislature did not intend notice to be either a condition precedent to waiver of immunity or jurisdictional.” Id. at 359.

Based upon the Code Construction Act, Texas law regarding waivers of immunity by governmental entities, and the clear language of the Act, taken as a whole, we conclude that the Legislature intended to make the initiation of the government employer’s grievance procedure mandatory. Because the Whistleblower Act does not evidence in clear and unambiguous terms an intent to waive immunity when the public employee fails to initiate grievance and appeal procedures, we conclude that, absent notice when required by the employer’s grievance procedures, the Legislature did not intend to waive its sovereign immunity.

We recognize that “[e]ven if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional.” Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex.2001)(construing a statute that required purchasers of agricultural seeds to submit disputes to arbitration as a prerequisite to exercising its right to maintain a legal action); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.2000)(construing a statute permitting suits for personal injury or wrongful death of a citizen of a foreign country in Texas courts if the injured party’s country has “equal treaty rights” with the United States). “When a statute is silent about the consequences of noncompliance, we look to the statute’s purpose to determine the proper consequences.” Helena Chemical Co., 47 S.W.3d at 494. In Helena Chemical and Dubai, however, the statutes at issue did not require the application of the clear and unambiguous language rule that is applicable to sovereigns.

In our view, the Whistleblower Act is not silent on the issue of noncompliance, as it requires that the public employee must utilize the employer’s grievance and appeal procedure as a statutory prerequisite to filing suit. Nevertheless, we recognize that our state appellate courts are divided on whether the failure of a public employee to comply with statutory prerequisites creates a jurisdictional or a non-jurisdictional defect. See Univ. of Houston v. Barth, 178 S.W.3d 157, 161 (Tex.App.-Houston [1st Dist.] 2005)(no pet. history)(finding notice requirement of Whistle-blower Act to be jurisdictional defect); City of Roman Forest v. Stockman, 141 S.W.3d 805 (Tex.App.-Beaumont 2004, no pet.)(treating statutory prerequisites as jurisdictional); Tex. S. Univ. v. Carter, 84 S.W.3d 787, 792 (Tex.App.-Houston [1st Dist.] 2002, no pet.)(treating notice requirement as jurisdictional); but see Univ. of Houston v. Elthon, 9 S.W.3d 351 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.)(treating statutory prerequisites as non-jurisdictional defect); Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 781 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.)(treating statutory prerequisites as non-jurisdictional defect); Tex. Dep’t of Mental Health & Mental Retardation v. Olofsson, 59 S.W.3d 831, 832 (Tex.App.-Austin 2001, pet. dism’d.)(treating statutory prerequisites as non-jurisdictional defect).

In summary, the Legislature mandates that we adopt a narrow interpretation of waivers of governmental immunity. Smith’s claim exists solely by statutes that allow, under limited circumstances, a remedy otherwise unavailable to public employees at common law. As a result, it is within the Legislature’s power to define when and under what terms immunity is waived. The statute contains a mandatory condition precedent to the employee’s filing suit, consisting of a requirement that before suing the employee invoke the public employers’ grievance and appeal procedures. Smith did not fulfill the required condition precedent before she filed suit. Accordingly, under these circumstances, the Legislature did not waive the MCHD’s immunity from Smith’s suit.

FUTILITY

Smith argues that it would have been futile for her to have engaged in the MCHD’s appeal process. Smith reasons that under the MCHD’s appeal procedures, the person reviewing her termination was “the person who made the decision to fire her and whom she accused of committing a crime.” As a result, Smith asserts that the courts should create an exception to the statute’s requirement that a public employee invoke her employer’s appeal procedures when doing so would have been futile.

The MCHD, on the other hand, argues that the Whistleblower Act contains no futility exception. The MCHD cites Breaux v. City of Garland, 205 F.3d 150 (5th Cir.2000) for the proposition that courts have rejected the judicial creation of a futility exception for Texas Whistle-blower Act claims.

In Breaux, the trial court granted the City’s request for judgment as a matter of law because the employee involved, a police officer, failed to initiate an Internal Affairs investigation into his complaints before bringing a Whistleblower suit. The police officer argued “that the Internal Affairs process could not resolve complaints against the Chief of Police; filing a complaint with Internal Affairs would be futile since the Chief of Police determines whether an investigation should be initiated and ultimately reviews the results.” Id. at 162.

In Breaux, the Fifth Circuit states, “This court also refuses to create a futility exception under such circumstances.” Id. at 163. The Fifth Circuit reasoned that under the Garland Internal Affairs rules, the Chief of Police was recused from reviewing the disciplinary decision at issue because of his conflict of interest, and as a result other decision makers succeeded to the Chiefs position for purposes of reviewing the disciplinary decision at issue. Under these circumstances, the Fifth Circuit declined to create a futility exception under the Texas Whistleblower Act. Id. at 164.

In reviewing MCHD’s policy manual, we find no succession rules akin to the rules of the City of Garland’s police department. But, under MCHD’s appeal procedures, its employees may appeal the Chief Administrative Officer’s decision to the Board of Directors. Thus, there is a right under the MCHD’s policies to have decisions reviewed by people who did not make the initial decision and who could override the decision made by Hamilton. Smith also asserts that the MCHD failed to establish procedures regarding the appeal to its Board of Directors. While the absence of specific procedures regarding an appeal to the Board of Directors make the MCHD’s rules somewhat ambiguous, we believe that Smith could have protected her rights to file a suit: (1) by sending a letter within ninety days of the alleged violation of the Whistleblower Act to MCHD’s Board; (2) stating in the letter that she invoked her right to appeal her termination to the Board of Directors because of Hamilton’s alleged conflict of interest; and (3) informing the Board that she was invoking its grievance procedures. She could have further advised that MCHD had sixty days following her notice in which to conclude its grievance procedure. See tex. Gov’t Code Ann. § 654.006(d) (Vernon 2004)(al-lowing up to sixty days for employer to render final decision); see also Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 724 (Tex.App.-Houston [1st Dist.] 1995, writ denied)(finding that letter invoking grievance procedures sent in response to unclear post-termination grievance procedures perfected employee’s right to sue). Had Smith filed such a notice, the MCHD could have decided whether to allow Hamilton to review the decision, or someone else. Regardless of the MCHD’s response to a notice by Smith invoking an appeal of her termination, Smith’s rights to sue would have been preserved.

By perfecting the right to sue by invoking her employer’s appeal process, the public employee retains the right to pursue her day in court. Although Smith might not have succeeded at the initial stages of the procedure, exercising her appeal rights would not have been futile. By doing so, Smith would have ensured that she preserved the opportunity to have her employer’s decision reviewed by an impartial fact finder.

With respect to her reassignment and termination, Smith never initiated her administrative remedies. Creating a futility exception under these circumstances would graft terms onto the Whistleblower Act that were not chosen by the Legislature.

Finally, creating a futility exception would be redundant because the statutory procedures already guarantee access to an impartial review. Under the circumstances here, we decline Smith’s invitation to adopt a futility exception to the Whistle-blower Act’s mandate that public employees must initiate their employers’ grievance and appeal procedures to preserve their rights to sue.

We sustain MCHD’s issue that the trial court erred in denying MCHD’s plea to the jurisdiction. We reverse the trial court’s order denying MCHD’s plea to the jurisdiction and render judgment dismissing Smith’s claims against MCHD.

REVERSED AND RENDERED.

      . At the time Barrett was decided on March 11, 2005, section 311.034 of the Government Code stated, in its entirety: "In order to preserve the legislature's interest in managing state fiscal matters, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear an unambiguous language. In a statute, the use of 'person,' as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction.” Subsequent to Barrett, the Legislature amended section 311.034 by adding an additional sentence: "Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” See Act of May 25, 2005, 79th Leg., R.S., ch.1150, 2005 Tex. Gen. Laws 3783. The amendment's legislative history shows that the Legislature intended to clarify section 311.034. House Comm, on Civil Practices, Bill Analysis, Tex. H.B. 2988, 79th Leg., R.S. (2005). References