author: Justice FITZGERALD.

text:
    DALLAS COUNTY and Mike Dupree, Appellants, v. Armando H. GONZALES, Appellee.
    No. 05-04-01015-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 23, 2006.
    Rehearing Overruled March 3, 2006.

      Cynthia Keely Timms, Chrysta L. Castaneda, William Scott Hastings, Locke Liddell & Sapp LLP, Dallas, for Appellant.
    Emil Lippe, Jr., Law Offices of Lippe & Associates, Dallas, for Appellee.
    Before Justices WHITTINGTON, RICHTER, and FITZGERALD.
   OPINION ON REHEARING

Opinion by

Justice FITZGERALD.

We grant Dallas County and Mike Du-pree’s motion for rehearing. We withdraw the opinion and vacate the judgment of November 1, 2005.

This case involves two different lawsuits by Armando H. Gonzales against Dallas County and, in one of the lawsuits, Mike Dupree. The County filed pleas to the jurisdiction in both cases, which the trial court denied. Dupree moved for summary judgment asserting official immunity, which the trial court also denied. The County brings interlocutory appeals of the denials of the pleas to the jurisdiction. Dupree also appeals the denial of his motion for summary judgment asserting official immunity. We consolidated the appeals. We affirm the denial of one of the pleas to the jurisdiction and reverse the denial of the other; we affirm the denial of the motion for summary judgment in part and reverse in part.

PLEA TO THE JURISDICTION

In Texas, sovereign immunity deprives a trial court of subject-matter jurisdiction over lawsuits against the State or other governmental units unless the State consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Whether a court has subject-matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226; Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. at 227. If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. Id. at 227-28. If the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This procedure generally mirrors that of a summary judgment under rule of civil procedure 166a(c), and the burden is on the government to meet the summary judgment standard of proof. Id. This standard “protects] the plaintiffs from having to ‘put on their case simply to establish jurisdiction.’ ” Id. (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)).

Under the rule 166a(c) summary judgment standard, the burden of a defendant moving for summary judgment is to conclusively disprove at least one essential element of the plaintiffs cause of action or to conclusively establish every element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Thomas v. Omar Inv., Inc., 156 S.W.3d 681, 683 (Tex.App.-Dallas 2005, no pet.). Conversely, the plaintiff can bar summary judgment by presenting evidence that creates a fact question on those elements of the plaintiffs case under attack by the defendant or on at least one element of each affirmative defense advanced by the defendant. McAnally v. Friends of WCC, Inc., 113 S.W.3d 875, 879 (Tex.App.-Dallas 2003, no pet.). Alternatively, the plaintiff can defeat the motion by conceding that the material facts are undisputed, but convincing the court that the defendant’s legal position is unsound. Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 886 (Tex.App.-Dallas 2000, pet. denied).

The appeals from the two lawsuits involve different facts, issues, and parties. Accordingly, we address them separately. Cause number 01-080774-F involves ap-pellee’s allegations concerning his termination and reinstatement in 1997-1998, and cause number 01-02585-F involves ap-pellee’s termination in 2000-2001.

TERMINATION BY CONSTABLE CASTILLO

The first issue asserts the trial court erred in denying the plea to the jurisdiction in trial court cause number 01-080774-F.

Background

In 1997, appellee was a deputy constable working under Dallas County Precinct 6 Constable Castillo. Appellee alleged Castillo told him to tell bail bondsmen they would receive assistance in apprehending bond jumpers if they made political contributions to Castillo. Appellee alleged, “In other words, Castillo was soliciting bribes for performance of his duties as an elected official.” Appellee questioned the legality of this practice, and in September 1997, he reported it to a Dallas County assistant district attorney. On October 3, 1997, ap-pellee testified against Castillo before a grand jury investigating Castillo. Appel-lee was terminated from his position as a Dallas County deputy constable on December 11,1997.

Appellee alleged in his petition and asserted in an affidavit that he filed a grievance the next day, December 12, 1997, complaining of his termination for reporting Castillo’s unlawful activities, but the grievance was not file-stamped until December 15, 1997. In this grievance form, appellee stated the “results sought” were “backpay — No loss in benefits].”

On December 31, 1997, appellee was sent a letter from the county personnel and civil service department informing him of the date, time, and place of his hearing before the civil service commission. The letter also stated, “Please submit another grievance form and explicitly outline what you are grieving and the relief sought.”

On January 20, 1998, appellee filed a “Supplement to Formal Grievance Form” requesting reinstatement “with all rights and benefits previously held and that he be compensated for reasonable attorney’s fees and expenses required to appeal said termination.”

The civil service commission held a hearing on appellee’s grievance on January 26, 1998. Most of the testimony at the hearing concerned a similarly situated deputy constable who had also been terminated by Castillo. As to both deputies, Castillo failed to follow the Dallas County policies for terminating an employee. Castillo agreed to the reinstatement of the other deputy constable and then agreed to appel-lee’s reinstatement with back pay, benefits, and the same service vehicle. Appellee’s attorney then inquired of the commissioners about appellee’s other damages:

[Appellee’s Counsel]: In the context of the Civil Service Commission, how is it addressed as to monetary loss. This man lost his car, had no Christmas for his daughter, hasn’t been able to pay his attorney even.
[Commissioner Jackson]: It’s not.
[Appellee’s Counsel]: He is out all of those things then.
[Commissioner Price]: Right. Yeah, you can do civilly whatever you need to do with reference to the constable if there is some harm that is derived as a result of his action. All I’m saying is as far as this Commission is concerned and the county is concerned, we can only do the back pay, the benefits, full reinstatement.

Appellee returned to work the next day, and on February 3, 1998, the Commissioners Court officially ordered appellee’s reinstatement with back pay, no break in service, and all benefits and “structure adjustments.”

After being reinstated by the County, appellee filed suit in federal district court against the County, Castillo, and two other individuals alleging various federal causes of action and violation of the Texas “Whis-tleblower Act. In December 1999, the federal court granted the County’s motion for summary judgment on all causes of action except the Texas Whistleblower Act. The court denied the motion for summary judgment filed by the individual defendants asserting qualified immunity, and the individual defendants appealed that ruling. On May 4, 2001, the Fifth Circuit Court of Appeals held the individual defendants were entitled to qualified immunity on appellee’s federal claims, and it reversed the district court and remanded the case to it. See Gonzales v. Dallas County, Tex., 249 F.3d 406 (5th Cir.2001). The Fifth Circuit issued its mandate on May 31, 2001. On August 14, 2001, the trial court signed an “Agreed Order of Dismissal” dismissing the suit “in its entirety without prejudice to the plaintiffs right to refile his claim under the Texas Whistle-blower Act in the appropriate state forum under Texas law.” (Citation omitted.)

Appellee then filed his Whistleblower cause of action and his federal causes of action against the County in state district court. The County moved for summary judgment on appellee’s federal causes of action based on res judicata and collateral estoppel from the federal litigation. The County also moved for summary judgment on the Whistleblower cause of action. On April 2, 2008, the trial court granted this first motion for summary judgment as to the federal causes of action but denied it as to the Whistleblower cause of action.

On March 9, 2004, the County filed a plea to the jurisdiction asserting the County was immune from suit and moved to dismiss the suit for want of jurisdiction. The trial court denied the motion on July 2, 2004, and the County filed its notice of appeal on July 19, 2004.

Timeliness of Appeal

Appellee argues we lack jurisdiction over this interlocutory appeal because the County should have appealed the April 2, 2003 denial of its first motion for summary judgment on the Whistleblower cause of action. Appellee asserts that the first motion for summary judgment was a plea to the jurisdiction, and the County’s failure to timely appeal that order bars its appeal of the July 2, 2004 order. Having reviewed the first motion for summary judgment, we conclude it is not a plea to the jurisdiction. Although the first motion for summary judgment contains some of the same arguments that appellee’s Whistleblower cause of action lacks merit, it contains no assertion or argument that the trial court lacked subject-matter jurisdiction over the cause. See Freeman v. Wirecut E.D.M., Inc., 159 S.W.3d 721, 725 (Tex.App.-Dallas 2005, no pet.) (describing plea to jurisdiction as challenge to trial court’s authority to determine subject matter of suit). Accordingly, it was not a plea to the jurisdiction, and its denial was not subject to an interlocutory appeal. We conclude the County’s appeal is timely.

Whistleblower Act

The Whistleblower Act provides, “A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” Tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004). Violation of this prohibition entitles the employee to injunctive relief, actual damages, costs, attorney’s fees, reinstatement to the former or equivalent position, compensation for lost wages, and reinstatement of benefits and seniority. Id. § 554.003. The Act waives the government’s sovereign immunity to suit and liability “to the extent of liability for the relief allowed under this chapter for a violation of this chapter.” Id. § 554.0035. The County argues it is not liable under the Act — and is thus immune from suit—for various reasons. See Miranda, 133 S.W.3d at 225-26 (determination of jurisdictional issue may require resolution of merits of case).

Applicability of Act to Constable’s Actions

The County argues appellee does not qualify for relief under the Act because his “whistleblowing” does not fall under the Act. The violation of the law reported must be “a violation of law by [1] the employing governmental entity or [2] another public employee.” Tex. Gov’t Code Ann. § 554.002(a).- In its plea to the jurisdiction and on appeal, the County argues that reporting the illegal activities of Constable Castillo did not fall under the Act because, the County asserts, the constable, as an elected official, is not a “public employee.” The County, however, failed to argue that the violations of law by an elected constable are not those of the “employing governmental entity.” By not disproving as a matter of law both alternatives under section 554.002(a), the County has failed to meet its burden of conclusively disproving an element of appellee’s cause of action. See Miranda, 133 S.W.3d at 228.

Adverse Personnel Action

The County next argues it did not violate the Act because it did not terminate appellee’s employment or otherwise take adverse personnel action against him. The Act requires the plaintiff be terminated by a “state or local governmental entity,” Tex. Gov’t Code Ann. § 554.002(a); the County argues Constable Castillo, not the County, terminated appellee. The County argues that far from taking adverse personnel action against appellee, the County reinstated appellee. We do not agree that the County did not terminate appellee. The record includes the personnel policies from the County’s code, which provide that an employee may bring a grievance after his termination, but “[ujtilizing the grievance system will not alter an employee’s termination date.” Dallas County Code § 86-595(a). This provision shows, contrary to the County’s argument, that an employee who is terminated, brings a grievance, and is reinstated was in fact terminated at the time he brought his grievance; that he was later reinstated does not change the fact that he had been terminated. Regardless of who made the decision or communicated it to appellee, when appellee’s employment as a deputy constable ceased between December 11, 1997 and January 26, 1998, it was because he had been terminated by the County, which is a “local governmental entity.” See Tex. Gov’t Code Ann. § 554.001(2) (defining “Local governmental entity”). Furthermore, the fact that the County “reinstated” him is evidence that he was terminated; if he had not been terminated, then it would have been unnecessary to reinstate him.

The County next argues that its act of reinstating appellee relieves it of liability under the Act. As the County observes, the- Act requires employees to initiate grievance procedures before bringing a lawsuit. The County asserts that this requirement “provides the government an opportunity to redress the employee’s complaint without having to resort to time-consuming and expensive litigation.” See Johnson v. City of Dublin, 46 S.W.3d 401, 405 (Tex.App.-Eastland 2001, pet. denied); Gregg County v. Farrar, 933 S.W.2d 769, 775 (Tex.App.-Austin 1996, writ denied). But when the grievance procedure does not fully redress the employee’s complaint, the Act does not bar a claim for actual damages not satisfied by the redress the governmental employér provided. Cf. City of Ingleside v. Kneuper, 768 S.W.2d 451, 457 (Tex.App.-Austin 1989, writ denied) (wrongfully terminated employee awarded reinstatement by court also entitled to damages for loss of future earning capacity). If the legislature had intended for reinstatement with back pay, benefits, and seniority to bar an action for actual damages, it would have included such language in the Act. Cf. Martin v. Tex. Dental Plans, Inc., 948 S.W.2d 799, 803 (Tex.App.San Antonio 1997, writ denied) (monetary damages and reinstatement both recoverable in suit under workers’ compensation Anti-Retaliation Law; if legislature had intended to limit employees to one but not both remedies, it would have used limiting or disjunctive language in statute).

Grievance Procedure

The County next argues appellee did not initiate and exhaust the County’s grievance and appeal procedures with respect to the relief he seeks in this case. However, the County admits in its brief on appeal that appellee requested in his grievance part of the relief he seeks—his attorney’s fees and expenses in pursuing the grievance. The County instead argues that other damages appellee now seeks were not exhausted in the grievance procedure.

The issue before us in a plea to the jurisdiction is whether the plaintiff has pleaded a cause of action over which the trial court has subject-matter jurisdiction, not the plaintiffs right to recover each element of damages it pleaded. Webb County, Tex. v. Sandoval, 88 S.W.3d 290, 297 (Tex.App.-San Antonio 2002, no pet.); City of Cleburne v. Trussell, 10 S.W.3d 407, 410 (Tex.App.-Waco 2000, no pet.). The record shows appellee exhausted his administrative remedy as to at least one of his claims for damages in this litigation, his claim for attorney’s fees and expenses in pursuing the grievance. Thus, the trial court has jurisdiction over appellee’s Whis-tleblower cause of action. The County’s argument that appellee cannot recover other damages does not attack the trial court’s subject-matter jurisdiction over the cause of action and is outside our limited jurisdiction in this interlocutory appeal.

Limitations, the Grievance Procedure, and Filing Suit in Federal Court

Next, the County argues appellee’s cause of action is barred by the Act’s ninety-day limitations period. Section 554.005 provides, “Except as provided by Section 554.006, a public employee who seeks relief under this chapter must sue not later than the 90th day after the date on which the alleged violation of this chapter: (1) occurred. . . .” Tex. Gov’t Code Ann. § 554.005(1). Section 554.006 requires an employee to “initiate action under the grievance or appeal procedures of the employing ... governmental entity ... before suing” under the Act. Id. § 554.006(a). The ninety-day limitations period is tolled while the employee pursues the administrative remedy. Id. § 554.006(c).

In this case, appellee was terminated on December 11, 1997. His grievance was file stamped four days later on December 15, 1997. Appellee’s hearing before the civil service commission was on January 26, 1998, at which time he was reinstated. Appellee filed suit in federal district court on April 24, 1998. The County asserts this filing was untimely because, accounting for the tolling during the grievance procedure starting on December 15,1997 and ending on January 26, 1998, appellee filed suit ninety-two days after his termination. However, appellee filed an affidavit stating that he handed the grievance to the clerk on December 12, 1997, one day after his termination. If December 12, 1997 is taken as the date of filing instead of December 15, 1997, then, with the tolling provisions of section 554.006(c), appellee’s lawsuit was timely filed eighty-nine days after his termination.

A document is filed when it is given into the custody of the clerk; the file stamp is prima facie evidence of the date of filing, but it is subject to rebuttal. See Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 371-72 (Tex.1990) (per curiam). Appellee’s affidavit raises a genuine issue of material fact regarding the date of filing of the grievance and thus the timeliness of the filing of the lawsuit. Accordingly, the County has failed to establish as a matter of law that appellee’s suit is barred by the Act’s 90-day statute of limitations.

Limitations and Filing Suit in State Court

In its reply brief, the County argues its liability is barred by limitations because more than ninety days passed between appellee’s termination and his filing this suit in state court. In fact, more than three and a half years passed between appellee’s termination and his filing suit in state court. In the trial court, the County argued this expanse of time resulted in limitations barring appellee’s suit. In this Court, however, the County did not present this complaint in its brief on appeal but raised it for the first time in its reply brief. A reply brief may not be used to raise new issues. The Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee’s briefs but not raised by the appellant’s original brief. Penley v. Westbrook, 146 S.W.3d 220, 227 (Tex.App.-Fort Worth 2004 pet. filed); Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex.App.-Austin 2004, pet. denied). Accordingly, we conclude this issue is not properly before us.

Jurisdiction to Review Civil Service Commission

Finally, the County argues the trial court lacked jurisdiction to review the civil service commission’s decision not to award the damages appellee seeks. The County argues appellee should have appealed the Commission’s decision to the district court pursuant to section 158.012 of the Local Government Code. See Tex. Local Gov’t Code Ann. § 158.012 (Vernon 1999). Section 158.012 provides, “A county employee who, on a final decision by the commission, is demoted, suspended, or removed from the employee’s position may appeal the decision by filing a petition in a district court in the county within 30 days after the date of the decision.” Id. § 158.012(a). In this case, after the final decision of the civil service commission, appellee was fully reinstated and was not “demoted, suspended, or removed from the employee’s position.” Thus, section 158.012 does not apply to appellee.

Conclusion

We conclude the trial court did not err by denying the plea to the jurisdiction in appellee’s lawsuit concerning his termination and reinstatement in 1996 and 1997, trial court cause number 01-08074-F. We overrule the first issue.

TERMINATION BY CONSTABLE DUPREE

The second, third, and fourth issues assert the trial court erred in denying the plea to the jurisdiction and motion for summary judgment based on official immunity in trial court cause number 01-02585-F.

Background

Appellee alleged that on January 24, 2000, he injured his back while arresting a suspect. He filed a workers’ compensation claim due to the injury in February 2000. On June 21, 2000, appellee’s doctor checked the place on a form stating appel-lee was “disabled to perform the duties appurtenant to his/her regular employment/school beginning: 6-21-00,” “Restriction limited to light work,” and wrote on the form “No driving, no in and out of vehicle, no stairs, will be re-eval. in 2 weeks.” On June 23, 2000, Constable Castillo offered appellee light-duty assignments of “Bailiff functions, Answering phones (to include some dispatching duty), Other duties as assigned that meet your restrictions.” Appellee initially refused in order to talk to his doctor, but after the terms were modified to six-hour work days, he accepted them. Appellee did not work from June 21 through June 26, 2000. From June 27 to August 10, 2000, appellee worked mostly six-hour days according to the terms Castillo had offered. From August 11 to December 10, 2000, appellee did not work.

On August 9, 2000, appellee’s doctor stated that appellee would be disabled to perform his job duties beginning August 14, 2000 and would return to work on August 28, 2000. After August 28, 2000, the doctor continued to extend appellee’s disability period. On September 14, 2000, appellee filed an application for disability insurance benefits with the Social Security Administration. On October 21, 2000, ap-pellee was determined to have “an impairment rating of 15% of the whole person” and to have reached his point of maximum medical improvement on October 14, 2000.

On December 5, 2000, Castillo sent ap-pellee a letter requesting appellee provide an update of his medical status and informing appellee, “If you are unable to perform your essential job duties on December 31, 2000, we are within our rights to terminate your employment with Dallas County.” Appellee returned to work for six-hour days from December 11, 2000 to December 19, 2000. Appellee did not work after December 19, 2000. On December 20, 2000, appellee filed a request for medical leave of absence starting December 22, 2000 and continuing for six to eight weeks. The application was supported by appellee’s physician’s certification that appellee would have cervical-fusion surgery on “1/2/00 [sic]” and would require three months’ care. Appellee underwent the surgery on January 20, 2001.

Meanwhile, there was a change in the office of Constable, Precinct 6. Castillo’s term ended on December 31, 2000, and the newly elected constable, Dupree, took office January 1, 2001. Before taking office, Constable-Elect Dupree sent appellee and several other deputy constables letters dated December 11, 2000 stating:

This letter serves to notify you that effective January 1, 2001, your services under my administration will not be required. Any Dallas County owned property that was issued to you should be surrendered to your immediate supervisor. Your cooperation on this matter is expected.

The County and Dupree believed they were under no obligation to keep, swear in, or re-hire deputy constables whose terms had ended. See Dallas County v. Wiland, 124 S.W.3d 390, 394 (Tex.App.-Dallas 2003, pet. granted). In his affidavit, Dupree stated he chose not to swear in appellee “because I did not have full faith and confidence in him.” In his deposition, Du-pree testified he chose not to swear in some of the deputy constables due to his lack of faith and confidence in them. However, he testified he chose not to swear in appellee because he had learned in October 2000 that appellee had been terminated from employment for exceeding the authorized leave time without returning to work.

Appellee’s employment with Dallas County ceased on Friday, December 29, 2000.

Appellee and the other deputy constables filed grievances; appellee filed his on December 27, 2000 and a second one on January 3, 2001. In the grievances, appel-lee stated he was “notified of disciplinary action” on December 27, 2000. In the blank for “Summarize disciplinary action taken,” appellee wrote, “Termination by letter then by phone by Const elect & Const Mike Dupree.” In the blank for “State reason for grievance and results sought,” appellee wrote, “To be reinstated to Depty [sic] in 2001.” On February 27, 2001, the civil service commission denied appellee and the other deputies a hearing on their grievances because their complaints about being terminated by Constable-Elect Dupree were not “grievable.”

On January 29, 2001, appellee applied for disability benefits with the Texas County and District Retirement System. In the forms, appellee acknowledged he was “physically incapacitated to engage in any gainful occupation, that such incapacity is likely to be permanent” (emphasis omitted).

On February 8, 2001, the Texas Workforce Commission determined appellee was entitled to benefits because the Commission’s “investigation found your former employer discharged you from your last work due to your medically verifiable inability to work.” On November 14, 2001, the Social Security Administration found appellee “has been under a disability, as defined in the Social Security Act, since August 14, 2000.” Additional medical and workers’ compensation reports in the record show appellee has remained disabled through April 19, 2002 with no expected date of ability to return to work.

On March 29, 2001, appellee sued the County and Dupree, alleging they had violated chapter 451 of the Labor Code by terminating him for filing a workers’ compensation claim. Appellee also pleaded “a cause of action for interference with plaintiffs rights under the Texas Workers’ Compensation Act.” Besides these causes of action, appellee pleaded causes of action that appellants violated 42 U.S.C. section 1983 by discriminating against appellee for engaging in “speech” by filing a claim under the Workers’ Compensation Act and by denying appellee’s substantive and procedural due process right to the protections of the County’s grievance system by declaring his complaint not “grievable.” On March 19, 2004, appellants filed a plea to the jurisdiction, a motion for summary judgment, and special exceptions. The trial court denied the plea and motion on July 2, 2004, and appellants timely appealed on July 19, 2004.

Workers’ Compensation Retaliation Claims

The second issue asserts the trial court erred in denying the plea to the jurisdiction on appellee’s causes of action for retaliation for filing a workers’ compensation claim. Appellee asserted two causes of action: (1) expressly brought under section 451.002 of the Labor Code, alleging violation of section 451.001 of the Labor Code; and (2) tortious interference with workers’ compensation rights.

Statutory Anti-Retaliation Law

Section 451.001 of the Labor Code, the Anti-Retaliation Law, provides, “A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith.... ” Tex. Lab.Code Ann. § 451.001 (Vernon 1996). Section 451.002 provides that a person who violates section 451.001 is liable for reasonable damages, and the employee discharged in violation of section 451.001 is entitled to reinstatement in the former position of employment. Id. § 451.002.

The supreme court has held that the State Applications Act, now codified in section 504.002 of the Labor Code, makes the Anti-Retaliation Law applicable to state agencies. See id. §§ 451.001, 504.002(a)(10), (b) (Vernon Supp.2005); Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 8 (Tex.2000). Section 504.002 makes the Anti-Retaliation Law applicable to a “political subdivision,” which is defined in section 504.001(3) as including a county. Tex. Lab.Code Ann. § 504.001(3) (Vernon Supp.2005). The supreme court went on to hold that the State Applications Act waived a political subdivision’s immunity under the Anti-Retaliation Law up to the limits on damages set out in the Tort Claims Act. Kerrville State Hosp., 28 S.W.3d at 9-10; see Tex. Civ. Prac. & Rem.Code Ann. § 101.023 (Vernon 2005); Tex. Lab.Code Ann. § 504.002(c) (Vernon Supp.2005).

Although immunity against suit for the Anti-Retaliation Law is waived by the Applications Act, the employee’s failure to exhaust administrative remedies before bringing suit on the Anti-Retaliation Law deprives the trial court of jurisdiction over that cause of action. Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 354 (Tex.2005); Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001) (per curiam). The County argues that appellee’s failure to assert his Anti-Retaliation Law claims in his December 27, 2000 and January 3, 2001 grievances resulted in his failure to exhaust his administrative remedy, thereby depriving the trial court of subject-matter jurisdiction over this cause of action.

The County’s personnel policies state that a grievance may be filed for various reasons, including improper application of rules, regulations, and procedures; and demotion, suspension, or dismissal. Dallas County Code § 86-1003. The Commission’s actions resulting in demotion, suspension, or termination may be appealed to a district court within thirty days after written notification of the Commission’s decision. Id. § 86-1007(o)(3). We conclude appellee’s claim of wrongful termination for filing a workers’ compensation claim was subject to the County’s grievance procedures.

Appellee argues his grievances were sufficient and relies on this Court’s opinion in County of Dallas v. Wiland, 124 S.W.3d 390 (Tex.App.-Dallas 2003, pet. granted). Appellee asserts that in Wiland, other deputy constables terminated in December 2000 recovered damages on their causes of action even though their grievances were identical to his. Wiland, although related factually to the case before us, did not involve the legal issue before us. In Wi-land, three deputy constables, terminated by Dupree’s decision not to swear them into office for another term, sued the County under 42 U.S.C. section 1983 alleging violations of their procedural and substantive due process rights by the County’s failure to allow them the protections of the grievance procedure when it terminated them. Id. at 393-94. As it did to appellee, the civil service commission had deemed their terminations not “grievable” and took no action on their grievances. Id. at 394. Wiland however, did not concern a plea to the jurisdiction, and none of the deputy constables in Wiland brought a cause of action under the Anti-Retaliation Law. Thus, Wiland is distinguishable.

Appellee also asserts exhaustion of administrative remedies should not be required because the County’s determination that he had no right to the grievance system made the seeking of an administrative remedy futile. Appellee cites no authority for the argument that “futility” creates jurisdiction. Appellee’s argument is essentially that the County’s conduct estops it from asserting lack of jurisdiction due to his failure to exhaust administrative remedies. In Wilmer-Hutchins Independent School District v. Sullivan, however, the supreme court ruled that when exhaustion of administrative remedies is a jurisdictional prerequisite, such as in a cause of action under the Anti-Retaliation Law against a political subdivision, the government’s conduct may not be used to excuse that prerequisite because jurisdiction cannot be conferred by estoppel. Sullivan, 51 S.W.3d at 294.

We conclude appellee’s failure to assert in his grievances that his termination was a result of his filing a workers’ compensation claim resulted in his failing to exhaust his administrative remedy. Because ap-pellee did not exhaust his administrative remedy on this cause of action, the trial court lacked subject-matter jurisdiction over it, and the trial court erred by denying the plea to the jurisdiction on it.

Tortious Interference with Workers’ Compensation Rights

Appellee also pleaded “a cause of action for interference with plaintiffs rights under the Texas Workers’ Compensation Act.” Appellee alleged appellants “knowingly and willfully interfered with and attempted to vitiate the Plaintiffs recognized right to file a claim for workers’ compensation benefits.” He also alleged appellants’ “intentional violation of Plaintiffs rights under Texas law” damaged him. The County asserts (1) there is no common-law cause of action for interference with workers’ compensation rights against an employer and (2) that appellee’s failure to exhaust his administrative remedy deprived the court of subject-matter jurisdiction over this cause of action.

The workers’ compensation system and its rights come from statutes, not the common-law. Mingus v. Wadley, 115 Tex. 551, 558, 285 S.W. 1084, 1087 (1926), overruled on other grounds by Dubai Petroleum Co. v. Kazi 12 S.W.3d 71, 76 (Tex.2000). “The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive .... ” Id. (emphasis added). The Anti-Retaliation Law provides a complete remedy for an employee alleging discrimination for filing a workers’ compensation claim. That law provides reinstatement to the . employee’s former position and all “reasonable damages.” Tex. Lab.Code Ann. § 451.002 (Vernon 1996); Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 454 (Tex.1996). Because the rights appellee seeks to enforce and the remedy for their enforcement are derived from the Workers’ Compensation Act and not from the common law, we conclude the enforcement remedy provided in the Workers’ Compensation Act, the Anti-Retaliation Law, is the exclusive remedy for discrimination from the filing of a workers’ compensation claim. Thus, appellee’s only remedy for interference with his workers’ compensation rights lies under the Anti-Retaliation Law and not the common law. Accordingly, we must determine whether the trial court had jurisdiction under the Anti-Retaliation Law to adjudicate appel-lee’s claim of interference with his workers’ compensation rights.

The portion of appellee’s petition pleading interference with workers’ compensation rights does not specify how appellants interfered with his rights. However, the pleading incorporates all the facts alleged earlier in the petition, and the only alleged act of interference with appellee’s workers’ compensation rights was appellee’s allegation that he was terminated for filing a workers’ compensation claim. As discussed above, appellee was required, and failed, to exhaust his administrative remedies before bringing suit under the Anti-Retaliation Law. Accordingly, the trial court lacked jurisdiction over appellee’s cause of action for interference with workers’ compensation rights. We conclude the trial court erred in denying the plea to the jurisdiction for this cause of action. We sustain the second issue.

Civil Rights Claims

The third issue asserts the trial court erred in denying the plea to the jurisdiction on appellee’s civil rights claims. Ap-pellee brought these causes of action under 42 U.S.C. section 1983, which provides,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C.A. § 1983 (West 2003).

The County has no sovereign immunity from á section 1983 claim. Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990); County of Dallas v. Sempe, 151 S,W.3d 291, 300 (Tex.App.-Dallas 2004, pet. filed); Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 241-42 (Tex.App.-Dallas 2000, pet. denied). Nor does'the failure to exhaust administrative remedies deprive a trial court of jurisdiction over a section 1983 claim. Patsy v. Bd. of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Upton County v. Brown, 960 S.W.2d 808, 820 (Tex.App.-El Paso 1997, no pet). Thus, a plaintiff bringing suit under section 1983 need not establish a waiver of immunity when bringing suit. Nueces County v. Hoff, 105 S.W.3d 208, 211 (Tex.App.-Corpus Christi 2003), rev’d on other grounds, 153 S.W.3d 45 (Tex.2004) (per curiam). Although the Eleventh Amendment provides immunity to the State and its agencies from suits under section 1983, that immunity does not extend to the County. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (Eleventh Amendment provides states with immunity from section 1983 claims); Hoff v. Nueces County, 153 S.W.3d 45, 47 (Tex.2004) (per curiam) (State’s Eleventh Amendment immunity does not extend to counties).

To be entitled to the government’s lack of immunity under section 1988, the plaintiff .must plead a cause of action in which the deprivation of a federal right is implicated. City of Fort Worth v. Robles, 51 S.W.3d 436, 444 (Tex.App.-Fort Worth 2001, pet. denied). The County asserts appellee’s section 1983 claims fail to allege the deprivation of federally protected rights and therefore fail to displace the County’s immunity from suit. Thus, the County argues, the trial court lacked jurisdiction over appellee’s civil rights claims. See id. We will examine appellee’s claims and determine whether they allege the deprivation of federally protected rights.

Free Speech

Appellee alleged the County violated section 1983 by terminating him for exercising his right of free speech under the First Amendment. The “speech” appellee alleged was his “filing a workers’ compensation claim and asserting entitlement to recovery.” The County argues that the “speech” alleged by appellee is not protected by the First Amendment.

To prevail on a claim of First Amendment retaliation, the plaintiffs speech must have involved a matter of public concern. Johnson v. Louisiana, 369 F.3d 826, 830 (5th Cir.2004); Scott v. Godwin, 147 S.W.3d 609, 616 (Tex.App.-Corpus Christi 2004, no pet.). ‘Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Discrimination by a public agency for an employee’s speech that concerns only matters of the employee’s personal interest and not matters of public interest is not actionable under section 1983 as a violation of the employee’s First Amendment rights. See id. at 147, 103 S.Ct. 1684. Whether speech involves a matter of public concern is a question of law. Id. at 148 n. 7, 103 S.Ct. 1684.

Whether a public employee’s filing of a workers’ compensation claim and his assertion of rights under the Workers’ Compensation Act constitutes a matter of public concern entitled to First Amendment protection appears to be an issue of first impression in Texas. However, the Texas Supreme Court has determined that, under the Texas Open Records Act, workers’ compensation claims are generally not subject to disclosure because they do not involve matters of “legitimate public concern.” Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex.1976). Other jurisdictions have held the assertion of workers’ compensation rights does not involve a matter of public concern under the First Amendment. See O’Malley v. New York City Transit Auth., 829 F.Supp. 50, 53 (E.D.N.Y.1993); Santiago v. Temple Univ., 739 F.Supp. 974, 981 (E.D.Pa.1990), aff'd, 928 F.2d 396 (3rd Cir.1991). In his brief, appellee does not explain how his workers’ compensation claim and his assertion of his rights under the Workers’ Compensation Act involved matters of public concern.

After reviewing the entire record, we conclude appellee’s workers’ compensation claim and assertion of rights under the Workers’ Compensation Act involve only matters of appellee’s personal interest. We perceive no issue of public concern in these matters. Because appellee’s claim of First Amendment retaliation is not based on speech involving public concern, we conclude appellee’s claim does not assert the deprivation of a federally protected right, and the trial court lacked jurisdiction over this cause of action.

Due Process

Appellee alleged appellants violated his Fourteenth Amendment right not to be deprived of property without due process of law. He alleged his deputy constable position was the property interest of which he was deprived, and the process he alleges appellants denied him was the County’s grievance procedures with the rights to notice and hearings provided by those procedures. Appellee argues appellants denied him due process by concluding his claims were not “grievable” and by failing to follow the prescribed procedures of providing written determinations and grievance proceedings. Appellee’s petition cites to this Court’s opinion in Wiland and alleges he is entitled to the same legal holdings as the deputy constables in Wiland.

In analyzing a claim of deprivation of procedural due process, we apply a two-part test: we must determine (1) whether the plaintiff had a liberty or property interest entitled to procedural due process; and (2) if so, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995). In a substantive due process analysis, we determine (1) whether the plaintiff had a protected property interest and (2) if the government deprived him of that interest capriciously and arbitrarily. City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex.App.-Amarillo 1996, writ denied); see Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (substantive due process bars arbitrary, wrongful government actions); Simi Inv. Co. v. Harris County, Tex., 236 F.3d 240, 249 (5th Cir.2000) (substantive due process protects against deprivation of constitutionally protected interests through government’s arbitrary abuse of power). Thus, the first question under both procedural and substantive due process is whether appellee has a constitutionally protected property interest in his deputy constable position.

A constitutionally protected property interest is an “individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” Wiland, 124 S.W.3d at 396 (quoting Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 418 (Tex.1993) (quoting Logan, 455 U.S. at 430, 102 S.Ct. 1148)). The interest cannot be based on a mere unilateral expectation. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A legitimate claim of entitlement is not created by the Constitution but “by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. Thus the issue is whether appellee’s expectation of continued employment as a deputy constable after December 29, 2000 is grounded in state law or if it is a mere unilateral expectation.

Appellee asserts the issue of constitutional protection of his continued employment was decided by this Court in Wiland and that our opinion in that case controls in this case. In Wiland, we held the Dallas County deputy constables, according to the provisions of the Local Government Code and the County’s personnel policies implemented under the provisions of the Local Government Code, had a constitutionally protected property interest in their employment, were protected by the County’s civil service system, could not be terminated except for the reasons set out in its personnel policies, and were entitled to the notice and hearings provided by the civil service system under its grievance procedures. Wiland, 124 S.W.3d at 397-99.

The County argues that Wiland is distinguishable because appellee, due to his physical inability to perform the duties of a deputy constable, is not similarly situated to the deputy constables in Wiland who were terminated by Dupree’s decision not to rehire them. Nothing in the Wiland opinion indicates that the deputy constables in that case were unable to perform the duties of the deputy constable position. Appellee, however, by applying for disability benefits with the social security administration, stated he was unable “to engage in any substantial gainful activity” as of August 14, 2000 and expected his disability to result in his death or continue for at least twelve months. See 42 U.S.C.A. § 423(d)(1)(A) (West Supp.2005) (definition of “disability”). The record contains copious evidence of reports from health care providers and opinions on appellee’s applications for disability benefits, all of which conclude that appellee was physically incapable of performing the duties of a deputy constable. Some of these reports state appellee, before the County terminated him, had reached his maximum level of improvement and that his disabilities were permanent. Some of the reports conclude appellee was incapable of performing any gainful employment. At the end of his employment, December 29, 2000, appellee was unable to perform even the light-duty assignments Castillo had authorized for him. Whether appellee had a legitimate claim to continued employment is controlled by the County’s leave policies, which were not a consideration in Wiland. Accordingly, we conclude Wiland does not control the issue of whether appellee had a constitutionally protected property interest.

To determine appellee’s right to his continued employment on December 29, 2000 despite his inability to work, we must examine the County’s leave policies, the right to return to work under those policies, and their application to appellee. The County’s personnel policies allow an employee to take up to twelve weeks of leave per twelve-month period under the Family and Medical Leave Act (FMLA). Dallas County Code § 82-603(1). Workers’ compensation leave for a “serious health condition,” that is, one requiring the employee to be off work for more than three days, is designated as family and medical leave and is subject to the twelve-week limit. Id. §§ 82-558(2), -606(f). Before ■ an employee who has missed work due to a workers’ compensation injury may return to work, the employee must obtain certification from a physician that the employee is physically able to return to work. Id. §§ 82-564(e)(l), -606(h). An employee who has exhausted his FMLA leave may request additional time off beyond the twelve weeks at the discretion of the department head. Id. § 82 — 606(j). “Failure to submit the written request before the family and medical leave period ends may result in the employee’s termination.” Id. An employee who has exhausted all leave and is suffering from “an illness or disability not believed to be of a permanent or disqualifying nature” may apply for leave without pay, but the application must be approved by an order from the commissioners court to be effective, and that approval is discretionary and discouraged. Id. §§ 82-471, -472, -473.

Once an employee is able to return to work, the County’s policies impose the following “guidelines” on placement of the employee. An employee whose physician has approved the employee’s return to work without any restrictions returns to his regularly assigned job duties. If the employee’s physician places restrictions on the employee’s physical abilities, then the department in which the employee works may (a) retain the employee in the previous position by accommodating the restrictions, (b) transfer the employee to another position within the department, (c) contact human resources to attempt to place the employee in a position in another department, or (d) “[tjerminate the employee if unable to accommodate.” Id. § 82-564(a). Placement of an employee in another department is not guaranteed. Id. § 82-564(b).

Consideration of these policies leads to the conclusion that a County employee’s legitimate claim to his position when the employee is not able to work does not extend beyond the exhaustion of all leave guaranteed under the FMLA and all additional leave diseretionarily granted. If the employee is unable to return to work at the end of all leave, then the employee no longer has a legitimate claim to employment guaranteed by state law.

Appellee’s time off work of more than three consecutive days fell under the FMLA. Thus, his absences from June 21 through June 26 used four days of his twelve weeks of FMLA leave. Appellee’s FMLA leave began running again on August 11, and the twelve weeks expired on October 27. On December 29, when appel-lee’s employment with the County ceased, appellee’s guaranteed leave under the FMLA was exhausted, his doctor had declared him unfit to work at all, and he had not been granted any discretionary leave. These facts establish that appellee’s continued employment on December 29, 2000 was not an “individual entitlement grounded in state law” and that any expectation appellee had of continued employment was a mere unilateral expectation.

The County has conclusively established appellee had no constitutionally protected property interest in his deputy constable position when his employment with the County ceased. Because the existence of a constitutionally protected property interest is a necessary element to both procedural and substantive due process claims, the County has also conclusively established that appellee has failed to allege the deprivation of federally protected rights. Thus, the County retains its immunity to suit.

We hold the trial court erred in denying the County’s plea to the jurisdiction on appellee’s section 1983 claims. We sustain the third issue.

Official Immunity

In the fourth issue, Dupree contends the trial court erred in denying his motion for summary judgment on the ground of official immunity. Section 51.014(a)(5) authorizes an interlocutory appeal from the denial of a motion for summary judgment “based on an assertion of immunity by an individual who is an officer or employee of ... a political subdivision of the state.” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.2005). Official immunity protects public officials from lawsuits arising from performance of their (1) discretionary duties (2) in good faith (3) within the scope of their authority. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422 (Tex.2004); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). Official immunity is an affirmative defense, and the burden of proof is on the official to prove all elements of the defense. Ballantyne, 144 S.W.3d at 424; Chambers, 883 S.W.2d at 653. To prevail on a motion for summary judgment asserting an affirmative defense, the movant must conclusively prove each element of the defense and establish his entitlement to judgment as a matter of law. Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 & n. 10 (Tex.2005); McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex.2003).

Dupree first argues he cannot be liable under the Anti-Retaliation Law because he was not appellee’s employer. Dupree argues that only employers, not supervisors and officials, can be liable under the Anti-Retaliation Law. See Jenkins, 16 S.W.3d at 439. In the motion for summary judgment, this argument was not presented as an assertion of official immunity. Under section 51.014(a)(5), our jurisdiction is limited to whether the trial court correctly ruled on a motion for summary judgment based on an assertion of official immunity. We lack jurisdiction to consider any other arguments for the summary-judgment movant’s lack of liability. Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex.App.-Houston [1st Dist.] 1993, no writ). Dupree’s argument that he cannot be liable under the Anti-Retaliation Law because he was not appellee’s employer is not an assertion of official immunity because it does not assert his actions were discretionary, made in good faith, and within the scope of his authority. Accordingly, this argument does not fall within the limited grant of our jurisdiction for interlocutory appeals, and we cannot consider it.

Dupree argues he has official immunity for any termination occurring before January 1, 2001 because he was not Constable or a public official and so could not have been acting under color of state law before January 1, 2001. We disagree. Official immunity requires that the party was a public official. See Ballantyne, 144 S.W.3d at 422; Chambers, 883 S.W.2d at 653. Dupree’s argument on its face is self-defeating. Dupree admits he was not a public official before January 1, 2001. Thus, because only a public official can claim official immunity, we conclude Du-pree has failed to establish his official immunity for that period.

Dupree next argues he has official immunity for his actions after January 1, 20Ó1 in not swearing in appellee for another term because his decision not to re-hire appellee was discretionary and made in good faith. We agree. At that time, ap-pellee had been terminated for his inability to work, and he was unable to perform even light-duty assignments. As appellee had exhausted all leave, he no longer had a claim to continued employment grounded in state law. Thus, Dupree’s decision whether to swear in appellee as a deputy constable was discretionary. The record shows the reasons Dupree chose not to swear in appellee for another term were his lack of faith and confidence in appellee and because appellee exhausted his leave time and did not return to work. Regardless of whether Dupree’s reason for not swearing in appellee was his lack of faith and confidence in appellee or appellee’s failure or inability to return to work, Du-pree’s decision under these facts and circumstances was one made in good faith within the scope of his authority. We conclude Dupree has conclusively established his official immunity on all causes of action concerning Dupree’s conduct on or after January 1, 2001 and that the trial court erred in denying Dupree’s motion for summary judgment on those allegations. We sustain the fourth issue in part and overrule it in part.

CONCLUSION

In cause number 01-08074-F, we affirm the. denial of the plea to the jurisdiction.

In cause number 01-02585-F, we reverse the trial court’s order denying the County’s plea to the jurisdiction, and we dismiss appellee’s causes of action against the County for want of jurisdiction. We reverse the trial court’s order denying Du-pree’s motion for summary judgment asserting official immunity as to all causes of action concerning Dupree’s actions on or after January 1, 2001, and we otherwise affirm the order denying Dupree’s motion for summary judgment asserting official immunity.

      . The County cites Carter v. Castillo, No. 3:99-CV-0047-X, 2001 U.S. Dist. LEXIS 1264 (N.D.Tex. Feb. 7, 2001). In that case, the employee filed a grievance and recovered all the relief he requested in the grievance for the adverse personnel actions he established. Ap-pellee, however, did not receive all the relief he requested in his grievance.

      . The County states in its brief, "With the exception of the $1,000 he sought in attorney’s fees for the civil service appeal, Dallas County awarded Gonzales everything he grieved."

      . Section 554.006(d) sets out filing deadlines and tolling provisions when the grievance procedure takes more than sixty days, but those provisions are not relevant in this case because the grievance was resolved within sixty days. See Tex Gov’t Code Ann. § 554.006(d).

      . Appellee argues the tolling during grievance procedure should not end with the January 26, 1997 hearing but should end on February 3, 1997 when the Commissioners Court officially approved the action taken at the hearing. Tolling the limitations period from December 15, 1996 to February 3, 1997 would make appellee's petition timely filed without considering whether December 12, 1997 should be the initial day of tolling. Because under either scenario the County has failed to establish as a matter of law that appellee's federal petition was filed outside the ninety-day limitations period, we need not determine whether the January 26 date of the hearing or the February 3 date of the official decision approving the action taken at the hearing marked the end of the tolling period.

      . The issues in Wiland were the trial court's summary judgment on liability in favor of the deputy constables, the denial of the City's motion for summary judgment on liability, the jury trial on the deputy constables’ damages, and the bench trial on their attorney's fees. Wiland, 124 S.W.3d at 393-94. Thus, the issues in Wiland were whether the deputy constables' motion for summary judgment had proved the deprivation of their due process rights as a matter of law, whether the City had proved its lack of liability as a matter of law, and whether the deputy constables presented legally and factually sufficient evidence of damages and attorney’s fees. See generally id. at 390-404. The issue of whether the deputy constables had exhausted any administrative remedy before bringing suit was not before the Court. See generally id.

      . In July 2003, the County amended its personnel policies to remove deputy constables from the definition of' employees entitled to the protections of the civil service system.


source: Caselaw Access Project

license: Public Domain

text:
    Roderick STANSELL, Appellant v. DALLAS INDEPENDENT SCHOOL DISTRICT and Shirley J. Neeley, Commissioner of Education of the State of Texas, Appellees.
    No. 05-05-00539-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 24, 2006.

      Daniel A. Ortiz, Ortiz & Associates, Arlington, for Appellant.
    Lorraine J. Yancey, Dallas, George Warner, Asst. Atty. Gen., Austin, for Appellee.
    Before Justices O’NEILL, FITZGERALD, and LANG.
   OPINION

Opinion by

Justice FITZGERALD.

Roderick Stansell appeals the trial court’s decision affirming the Commissioner of Education’s dismissal for want of jurisdiction of appellant’s appeal of his employment termination by Dallas Independent School ■ District (DISD). We affirm the trial court’s judgment.

FACTUAL BACKGROUND

Before July 2003, appellant did not have a teaching certificate. In October 2001, appellant received an emergency teaching permit. One of the conditions of the emergency permit was that appellant pursue completion of education courses required to obtain a teaching certificate. Appellant was hired by DISD for the 2001-2002 school year under a probationary contract. Appellant had not completed the requirements for a teaching certificate by the end of the 2001-2002 school year, and he signed another probationary contract with DISD for the 2002-2003 school year.

On December 18, 2002 and March 25, 2003, appellant received notice of the education and certification requirements he had to fulfill by June 30, 2003. The December 18, 2002 letter also informed appellant that failure to comply with the requirements by June 30, 2003 “will result in your separation from employment.”

On June 11, 2003, Willie Crowder, DISD’s Associate Superintendent of Human Resource Services, sent appellant a letter stating DISD had not received either the documentation necessary for continuance of appellant’s emergency permit or a Texas teaching certificate for appellant. The letter stated appellant’s contract would “be rendered Null and Void effective June 30, 2003,” if the “Certification Office [did] not receive the official documentation by that date.” The letter instructed appellant to telephone Cassandra Black or Christy Wilson if appellant believed the letter was in error.

On June 26, 2003, appellant telephoned Christy Wilson, a certification specialist at DISD, and told her that he had completed the requirements for his Texas teaching certificate but that University of North Texas would not have his official transcript prepared until after June 30. Appellant testified Wilson told him not to worry about the June 30 deadline and to pay the $75 fee for the teaching certificate. Appellant did not pay the $75 until July 11, 2003. DISD was notified that appellant was approved for certification by the State Board of Educator Certification on July 23, 2003. Appellant received his Texas teaching certificate, which stated its “Official Record of Certification” was August 7, 2003, and its “Effective Date” was June 4, 2003. Appellant testified he was paid by DISD through August 31, 2003, which was the end of the term of his probationary contract.

Appellant requested a hearing on his termination before a hearing examiner as provided by chapter 21 of the Education Code. See Tex. Educ.Code Ann. §§ 21.251-.259 (Vernon 1996 & Supp.2005). The hearing examiner found against appellant. The hearing examiner concluded that appellant’s failure to comply with DISD’s June 30 deadline for filing his certification constituted good cause to terminate appellant’s employment during the probationary contract’s term. See id. § 21.104 (Vernon 1996). The hearing examiner also concluded appellant failed to meet the terms of the contract by not timely filing his certification, which rendered the contract void and unenforceable. The hearing examiner also recommended that the DISD board of trustees uphold DISD’s recommendation to terminate appellant’s contract. The hearing examiner also recommended the board of trustees uphold DISD’s decision that appellant’s contract was null and void. The hearing examiner further recommended that appellant “should be discharged from any teaching relationship with Dallas effective June 30, 2003, but receive whatever pay to which he was entitled for the year 2002-2003.”

On November 19, 2003, the DISD board of trustees met to consider the hearing examiner’s recommendation that appellant be discharged. See id. § 21.258. At the hearing, one member of the board of trustees asked how many other teachers were similarly situated, and Cassandra Black, DISD’s director of certification, told the board that as of June 30, 2003, there were about 500 other teachers in appellant’s position, that many of them, like appellant, had subsequently completed their certification, and some of them had returned “to the job.” Another trustee immediately stated this information could not be considered. At that meeting, the board of trustees voted to adopt the findings of the hearing examiner and to terminate appellant’s employment.

On December 5, 2003, appellant appealed the board of trustees’ decision to the commissioner under section 21.301 of the Education Code. On January 23, 2004, the commissioner concluded it had no jurisdiction over the appeal and dismissed the appeal. Appellant timely filed suit in district court pursuant to section 21.307, and the district court affirmed the commissioner’s decision.

Appellant now appeals to this Court. Appellant brings three “issues and points” contending (1) the trial court erred in affirming the decision of the commissioner, (2) the commissioner erred in determining it lacked jurisdiction over appellant’s appeal of the board of trustees’ decision, and (3) that the commissioner’s decision was not supported by substantial evidence. Appellant argues all three issues and points together, and we consider them together.

ADMINISTRATIVE RELIEF UNDER CHAPTER 21 OF THE EDUCATION CODE

At the time of appellant’s contract, chapter 21 of the Education Code described two ways in which a teacher under a probationary contract may be terminated. Under section 21.103, the teacher may be terminated at the end of the term of the contract. This decision may not be appealed. Id. § 21.103(a) (Vernon Supp.2005). The board of trustees must give the teacher “notice of its decision to terminate the employment to the teacher not later than the 45th day before the last day of instruction required under the contract.” Id. If the board of trustees fails to give the proper notice required in section 21.103(a), then “the board must employ the probationary teacher in the same capacity.” Id. § 21.103(b). The second termination provision is section 21.104, which states that the teacher under a probationary contract “may be discharged at any time for good cause.” Id. § 21.104 (Vernon 1996).

Chapter 21 of the code contains a system of administrative relief. Id. §§ 21.251-.307 (Vernon 1996 & Supp.2005). The system of administrative relief begins with a hearing before a hearing examiner under subchapter F of chapter 21. Section 21.251 lists the conditions under which a hearing examiner has jurisdiction, as well as specific conditions under which it does not have jurisdiction.

(a) This subchapter applies if a teacher requests a hearing after receiving notice of the proposed decision to:
(1) terminate the teacher’s continuing contract at any time;
(2) terminate the teacher’s probationary or term contract before the end of the contract period; or
(3) suspend the teacher without pay.
(b) This subchapter does not apply to:
(1) a decision to terminate a teacher’s employment at the end of a probationary contract; or
(2) a decision not to renew a teacher’s term contract, unless the board of trustees of the employing district has decided to use the process prescribed by this subchapter for that purpose.

Id. § 21.251 (Vernon 1996). Following a hearing, the hearing examiner makes a written recommendation that includes findings of fact and conclusions of law and may include a proposal for granting relief. Id. § 21.257(a) (Vernon Supp.2005).

The school district’s board of trustees then meets to consider the hearing examiner’s recommendation. Id. § 21.258 (Vernon 1996). Following its meeting, the board of trustees announces a decision with findings of fact and conclusions of law that adopts, rejects, or changes the hearing examiner’s conclusions of law and any proposal for relief. Id. § 21.259(a), (b). However, the board of trustees may not change the hearing examiner’s findings of fact unless the findings are not supported by substantial evidence. Id. § 21.259(c).

After the board of trustees issues its decision under section 21.259, the teacher may appeal that decision to the commissioner under section 21.801 by filing a petition for review. Id. § 21.301(a) (Vernon Supp.2005). “[A]ll issues relied upon by the petitioner must be raised in the petition for review....” 19 Tex. Admin. Code § 157.1051(b) (2005) (Tex. Educ. Agency, Petition for Review). The commissioner may not substitute its judgment for that of the board of trustees unless “the decision is arbitrary, capricious, or unlawful or is not supported by substantial evidence.” Tex. Educ.Code Ann. § 21.303(a), (b) (Vernon 1996).

After the commissioner issues its decision, “Either party may appeal the commissioner’s decision to: (1) a district court in the county in which the district’s central administrative offices are located; or (2) if agreed by all parties, a district court in Travis County.” Id. § 21.307(a) (Vernon Supp.2005). The decision subject to review by the judicial system is that of the commissioner. Id.; Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex.2000). “The court may not reverse the decision of the commissioner unless the decision was not supported by substantial evidence or unless the commissioner’s conclusions of law are erroneous.” Tex.Educ.Code Ann. § 21.307(f).

PROCEEDINGS BEFORE THE HEARING EXAMINER AND COMMISSIONER

In this case, the hearing examiner concluded it had jurisdiction under section 21.104 of the code and that DISD had good cause to terminate appellant’s contract during the probationary contract term because appellant breached his employment contract by failing to present his teaching certificate by June 30, 2003. The hearing examiner also concluded that appellant’s contract was “null and void” and “void and unenforceable” as of June 30, 2003.

Appellant’s petition for review to the commissioner asserted the commissioner’s jurisdiction under section 21.301. Appellant’s petition for review asserted generally that DISD’s board of trustee’s “decision ... to terminate his employment is arbitrary, capricious and not supported by substantial evidence.” Appellant then set out two specific issues for reversal of the board of trustee’s decision:

12. Respondent did not provide petitioner with notice of its decision to terminate Petitioner’s employment not later than the 45th day before the last day of instruction as provided in Tex. Educ. Code § 21.103.
13. During the Board meeting of November 19, 2003, the Board of Trustees questioned Cassandra Black, an employee with the District’s personnel Office, as to how many other teachers were in a similar position to Petitioner. Ms. Black testified that there were 500 hundred [sic] such teachers. By questioning Ms. Black, it became apparent that the Board of Trustees believed it could not reject the hearing examiner’s recommendation without causing these other additional 500 hundred [sic] teachers to assert their right to a hearing.

In his brief to the commissioner, appellant’s only arguments for reversal were these issues. Appellant’s petition for review and his brief to the commissioner did not assert any issues respecting whether appellant was “discharged” or terminated for good cause or that his employment was terminated during the term of the contract. See id. § 21.104(a).

In its Conclusion of Law 3, the commissioner concluded it lacked jurisdiction to consider appellant’s claim that the board of trustees violated section 21.103 by failing to provide timely notice of a decision to terminate appellant’s probationary contract at the end of the contract term. Under section 21.301, the commissioner’s jurisdiction was limited to review of the board of trustees’ decision on the recommendations of the hearing examiner. Id. § 21.301(a). Under section 21.103(a), the board’s decision not to renew a probationary contract “is final and may not be appealed.” See id. § 21.103(a). Under section 21.251(b)(1), a hearing examiner lacks jurisdiction to review a claim of wrongful termination under section 21.103. See id. § 21.251(b)(1). Thus, if the hearing examiner lacked jurisdiction over an issue, so did the commissioner. Because the hearing examiner lacked jurisdiction over appellant’s claim of wrongful termination under section 21.103, we conclude the commissioner was correct in concluding it lacked jurisdiction over that claim.

In Conclusion of Law 4, the commissioner concluded it “lacks jurisdiction over any claim that Respondent terminated Petitioner’s probationary contract during the term of the contract because the board of trustees did not issue written notice of the proposed termination action, as required by Texas Education Code sections 21.251 and 21.253(a).” Appellant asserts this conclusion is legally erroneous because sections 21.251 and 21.253(a) do not require the notice of proposed termination to come from the board of trustees. See id. §§ 21.251(a), .253(a). Appellees assert the notice should be required to come from the board of trustees because, according to appellees, it is the board that makes the decision to terminate during the term of the contract. See id. § 21.104(a). We need not decide these assertions, however, because this conclusion of law is not necessary to the commissioner’s decision to dismiss the appeal. Conclusion of Law 4 concerned “any claim that Respondent terminated Petitioner’s probationary contract during the term of the contract.” Appellant made no such claim to the commissioner. Appellant’s claim before the commissioner of substantive error by the board of trustees was violation of 21.103: termination of a probationary contract “at the end of the contract period” without the required forty-five-day notice. Id. § 21.103(a) (emphasis added). Appellant made no assertion to the commissioner that his contract was terminated during the term of the contract.

In Conclusion of Law 6, the commissioner concluded it lacked jurisdiction of appellant’s claim that the board of trustees considered extra-record evidence because the commissioner lacked jurisdiction over the termination of appellant’s probationary contract. This conclusion is correct because appellant’s only ground of wrongful termination presented to the commissioner was section 21.103(a), termination at the end of a probationary contract, which is not subject to appeal. Appellant did not challenge this conclusion of law in the trial court or in this Court.

APPELLANT’S ARGUMENTS ON JUDICIAL APPEAL

Appellant’s first argument in this Court asserts the commissioner erred in dismissing the appeal for want of jurisdiction because DISD never asserted lack of jurisdiction to the commissioner. Subject-matter jurisdiction is a fundamental consideration, and its determination is not dependent upon whether a party challenges subject-matter jurisdiction. See, e.g., Juarez v. Tex. Ass’n of Sporting Officials, El Paso Chapter, 172 S.W.3d 274, 278 (Tex.App.-El Paso 2005, no pet.); Bird v. Kornman, 152 S.W.3d 154, 160 (Tex.App.-Dallas 2004, pet. denied); see also Morrow v. Corbin, 122 Tex. 553, 569, 62 S.W.2d 641, 649 (1933) (subject-matter jurisdiction cannot be conferred by agreement of parties); In re A.C.S., 157 S.W.3d 9, 15 (Tex.App.-Waco 2004, no pet.) (same, citing Morrow). Appellant’s argument lacks merit.

Appellant next argues the commissioner erred in Conclusion of Law 4 because the commissioner went beyond the pleadings in deciding it had no jurisdiction. As discussed above, Conclusion of Law 4 was not necessary because it concerned lack of jurisdiction over a claim that was not included in the petition for review and, therefore, was not before the commissioner. See 19 Tex. Admin. Code § 157.1051(b).

Appellant next argues that under section 21.103, a teacher must be given notice at least forty-five days before the last day of instruction of termination of employment at the end of the term of the probationary contract. See Tex. Educ. Code Ann. § 21.103(a). “If the board of trustees fails to give the notice of its decision to terminate the teacher’s . employment within the time prescribed by Subsection (a), the board must employ the probationary teacher in the same capacity ....” Id. § 21.103(b). Appellant asserts in this Court that because DISD failed to give him the mandatory forty-five-day notice, “as a matter of law Stansell had a contract with the DISD as a probationary classroom teacher for the 2003-2004 school year.” Thus, appellant argues, his termination in 2003 was necessarily termination during the term of his contract. Appellant, however, made no such argument to the commissioner. The courts’ duty in reviewing a decision from the commissioner is to' determine whether the commissioner’s decision was legally erroneous or lacked a " reasonable basis. See id. § 21.307(f); Davis, 34 S.W.3d at 562. Because the record does not show appellant made any such argument to the commissioner, we cannot conclude the commissioner erred in not considering this argument. See Tex.R.App. P. 33.1(a).

In this case, the only substantive ground appellant pursued before the commissioner was one on which the commissioner lacked jurisdiction to grant relief under chapter 21, termination of appellant’s probationary contract at the end of the contract’s term. See Tex. Educ.Code Ann. §§ 21.103(a); 21.251(b)(1). Accordingly, we conclude the commissioner did not err in dismissing the appeal, and the trial court did not err in affirming the commissioner’s dismissal of the appeal. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992) (appeal should be dismissed when appellate court lacks jurisdiction over appellant’s point of error); see also Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004) (“Only when the issue raised cannot implicate subject matter jurisdiction must the interlocutory appeal be dismissed.”). We overrule appellant’s issues and points.

We affirm the trial court’s judgment.

      . In Finding of Fact 26, the hearing examiner found "Christy told Stansell to have his certification fee by June 30, 2003.”

      . Cassandra Black, DISD’s director of certification, testified teachers were paid through August 31 for each school year even though the nine-month teaching period year ended in May or June.

      . Appellant’s judicial appeal to district court was due thirty days after the commissioner’s decision. See Tex. Educ.Code Ann. § 21.307(a) (Vernon Supp.2005). Appellant filed suit on February 23, 2004. Because the thirtieth day, February 22, 2004, fell on a Sunday, appellant's judicial appeal was timely filed on Monday, February 23, 2004. See Tex.R. Civ. P. 4.

      . The code now provides a third means of terminating a probationary contráct, section 21.0031. That section provides that a teacher’s contract is “void” if the teacher does not hold a certificate or permit from the State Board for Educator Certification or fails to fulfill the requirements necessary to extend the teacher’s temporary or emergency certificate. In those situations, the school district may give the teacher notice that his contract is void and then, among other choices, terminate him. The termination is not subject to appeal under the provisions of chapter 21 of the Education Code. Tex Educ.Code Ann. § 21.0031 (Vernon Supp.2005). This section, however, did not apply to appellant's 2002-2003 contract because the contract was entered into before the effective date of the statute. See Act of May 9, 2003, 78th Leg., R.S., ch. 181, § 2, 2003 Tex. Gen. Laws 267, 267 ("This Act takes effect September 1, 2003, and applies only to a contract entered into by a school district and an educator on or after that date.").

      . This section was amended in July 2004 after the commissioner’s decision; however, this provision appears in the pre-amendment version of the section.

      . During oral argument, appellant stated he did not pursue a hearing before the commissioner under its general jurisdictional powers set out in section 7.057 of the code. See Tex. Educ.Code Ann. § 7.057(a)(2)(A) (Vernon Supp.2005) ("[A] person may appeal in writing to the commissioner if the person is aggrieved by ... (2) actions or decisions of any school district board of trustees that violate: (A) the school laws of this state ....").

      . Appellant’s briefing in this Court contends he asserted to the commissioner termination for cause during the term of the contract: "Stansell and the Dallas ISD treated the underlying termination proceeding from start to finish as a termination of Stansell's contract for good cause during/prior to the end of its term....” After carefully reading all documents from appellant presented to the commissioner, we cannot agree with appellant. We find no statement in appellant’s petition for review to the commissioner or in his briefing to the commissioner asserting his termination was allegedly for cause during the term of the contract.

      . Appellant asserts in his briefing to this Court that he did argue to the commissioner that he was terminated during the term of his contract: "An appeal to the Commissioner under § 21.301 can only be based on a school district's decision to terminate a teacher's probationary or contract term of employment for good cause during/prior to the expiration of the contract term. That is precisely what Stansell was appealing to the Commissioner.” After carefully reading appellant's petition for review to the commissioner and his briefing before the commissioner, we cannot agree with appellant that he asserted to the commissioner that he was terminated during the term of his contract.


author: Justice WHITTINGTON.

text:
    NEW TIMES, INC., Dallas Observer, L.P., and J.D. Sparks, Appellants v. John DOE, Appellee.
    No. 05-05-00705-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 24, 2006.

      James A. Hemphill, Graves, Dougherty, Hearon & Moody, P.C., Austin, for Appellant.
    James N. Henry and Edward P. Perrin, Jr., Hallett & Perrin, Dallas, for Appellee.
    Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
   OPINION

Opinion by

Justice WHITTINGTON.

In this accelerated interlocutory appeal, we decide whether appellants may be held hable for damages under the Texas Communicable Disease Prevention and Control Act for reporting that an individual is HIV-positive. See Chapter 81, Tex. Health & Safety Code Ann. (Vernon 2001 & Supp.2005). While the confidentiality provisions of the Act serve an important public interest, we conclude they do not extend to the circumstances presented here and, therefore, the trial judge erred in denying appellants’ motion for summary judgment. We reverse the trial court’s judgment and render judgment that appel-lee take nothing.

BACKGROUND

Appellants New Times, Inc., Dallas Observer, L.P., and J.D. Sparks bring this appeal pursuant to section 51.014(a)(6) of the Texas Civil Practice and Remedies Code, asserting the trial judge erred in denying their motion for summary judgment. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6) (Vernon Supp.2005) (person may appeal interlocutory order of district court denying motion for summary judgment based on defense by member of print media arising under free speech or free press clause of United States or Texas Constitution or libel statute). Certain facts were established by the summary judgment evidence. The December 4, 2003 edition of the Dallas Observer newspaper included an article by J.D. Sparks entitled Fallen Angel. The focus of the article was alleged fiscal mismanagement and rifts among former and current leaders at the Dallas Cathedral of Hope church. One allegation discussed in the article was an attempt by church officials to include unpaid volunteers on the church’s insurance. In the article, Sparks wrote that Jean Morris, a former director of administration at the church, “alleges ... senior church leaders ... asked her to add volunteers such as [appellee], who was HIV-positive, to the church’s insurance policy even though only full-time paid employees were eligible.”

Sparks did not contact appellee for comment before the article was published. Sparks assumed, without confirming with appellee, that his HIV status was not confidential. Although Sparks did not know it at the time she researched and wrote the article, appellee’s HIV status had in fact been published due to his participation in the musical group “Positive Voices.” The printed material included with one of the group’s recordings states, “Positive Voices do not conceal the fact that every vocalist in this chorus, its Accompanist and its Director are all HIV+.” Appellee is identified by name as the accompanist, and his picture is included. This recording and others identifying appellee were advertised and made available for sale on the internet, and the group performed publicly in Texas and at least one other state.

Appellee sued appellants for wrongful disclosure of test results in violation of the Texas Communicable Disease Prevention and Control Act, invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. In an amended pleading, appellee asserted only the statutory violation and the civil conspiracy claim. Appellants moved for summary judgment on five grounds: (i) they did not release or disclose a test result in violation of the Act; (ii) punishment for the publication of true, non-private, lawfully-obtained information, which would not further a state interest of the highest order, would violate the Texas and United States constitutions; (iii) they did not act negligently and thus cannot be held liable under the Act; (iv) appellee’s conspiracy claim cannot be sustained because there is no liability for any substantive claim; and (v) appellee’s damages claim is contrary to the language and intent of the Act. We conclude appellants were entitled to judgment as a matter of law.

STANDARD OF REVIEW

Although this is an interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code, the parties do not contend our review of the issues presented is limited. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6); K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96 (Tex.App.-San Antonio 2002, no pet.) (where media defendant’s motion for summary judgment relied in part on law of libel under statute included in section 51.014(a)(6), entirety of trial court’s orders were appealable under section 51.014(a)(6)). We review a summary judgment de novo to determine whether a party has established its right to summary judgment as a matter of law. See Dallas Cent. Appraisal Dist. v. Cunningham, 161 S.W.3d 293, 295 (Tex.App.-Dallas 2005, no pet.). A party moving for a traditional summary judgment must show no material fact issue exists and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Cunningham, 161 S.W.3d at 295.

We review matters of statutory construction de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25. (Tex.2003); Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 252-53 (Tex.App.-Dallas 2005, no pet.). In construing a statute, our objective is to determine and give effect to the legislature’s intent. Nauslar, 170 S.W.3d at 253. If a statute’s meaning is unambiguous, we generally interpret the statute according to its plain meaning. Nauslar, 170 S.W.3d at 253. We begin by examining the exact wording and apply the tenet that the legislature chooses its words carefully and means what it says. See Nauslar, 170 S.W.3d at 253. We determine legislative intent from the entire act and not just its isolated portions. Nauslar, 170 S.W.3d at 253. In determining the meaning of a statute, a court must consider the entire act, its nature and object, and the consequences that would follow from each construction. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991). Interpretations of statutes which would produce absurd results are to be avoided. Sharp, 815 S.W.2d at 249. If possible, we interpret a statute in a manner that renders it constitutional. FM Prop. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex.2000). See generally Code Construction Act, Chapter 311, Tex. Gov’t Code Ann. (Vernon 2005) (presumptions and matters to be considered in construing statute).

Discussion

Appellee sued appellants for wrongful disclosure of test results, contending appellants released or disclosed a test result in violation of the Texas Health and Safety Code. The sections at issue provide:

§ 81.101(5) “Test result” means any statement that indicates that an identifiable individual has or has not been tested for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS, including a statement or assertion that the individual is positive, negative, at risk, or has or does not have a certain level of antigen or antibody.
§ 81.103(a) A test result is confidential. A person that possesses or has knowledge of a test result may not release or disclose the test result or allow the test result to become known except as provided by this section.
§ 81.104(b) A person who ... is found in a civil action to have negligently released or disclosed a test result or allowed a test result to become known in violation of Section 81.103 is liable for:
(1) actual damages;
(2) a civil penalty of not more than $5,000; and
(3) court costs and reasonable attorney’s fees incurred by the person bringing the action.

Tex. Health & Safety Code Ann. §§ 81.101-.104 (Vernon 2005).

Appellee argues appellants’ statement in the article that he was “HIV positive” constitutes the “release or disclosure” of a “test result” in violation of Chapter 81. It is undisputed that appellants did not know whether appellee had or had not been tested for HIV infection and did not possess or have knowledge of the results of any actual medical test on appellee. Nevertheless, appellee argues that, under the language of the statute, a mere statement that a person is HIV positive constitutes disclosure of a test result. Appellee further argues that under section 81.104(d), he may recover the statutory civil penalty for each person who read the article, a figure he estimates to be as high as 300,-000 people. See Tex. Health & Safety Code Ann. § 81.104(d) (each release or disclosure made in violation of subchapter constitutes separate offense). Appellee therefore claims he could be entitled to recover over one billion dollars, “merely a mathematical calculation” under the statute, for appellants’ publication of a single article. Under this interpretation, for a wilful violation, damages could reach three billion dollars. See Tex. Health & Safety Code Ann. § 81.104(c)(2) (civil penalty of not less than $5,000 nor more than $10,000 for wilful disclosure of test result).

We begin with the statutory definition of “test result.” While we agree with appel-lee that the statutory definition of “test result” is broad and has been interpreted broadly, see, e.g., Santa Rosa Health Care Corp. v. Garcia, 964 S.W.2d 940, 943 (Tex.1998) (statement by health care provider that person could be “at risk” of HIV infection falls within statutory definition of test result), the statute requires that the person to be held liable possess or have knowledge of a test result and must release or disclose the test result. See Tex. Health & Safety Code Ann. § 81.103(a) (“A person that possesses or has knowledge of a test result may not release or disclose the test result or allow the test result to become known except as provided by this section.”).

The purpose of the original Texas Communicable Disease Prevention and Control Act (now re-enacted as part of the Texas Health and Safety Code) was “to prevent and control the spread of communicable diseases in Texas by implementing reporting requirements, testing guidelines, and other measures.” Garcia, 964 S.W.2d at 942. The Texas Health and Safety Code “sets out the circumstances under which a person might be required to undergo AIDS or HIV testing.” J.K. & Susie Wadley Research Inst. & Blood Bank v. Whittington, 843 S.W.2d 77, 84 (Tex.App.-Dallas 1992, orig. proceeding); see Tex. Health & Safety Code Ann. § 81.102(a) (person may “require another person to undergo a medical procedure or test designed to determine or help determine if a person has AIDS or HIV infection”); see also Gulf Coast Regional Blood Ctr. v. Houston, 145 S.W.2d 557, 560 (Tex.App.-Fort Worth 1988, orig. proceeding) (noting that “[t]he Act is merely a general health regulation and states guidelines for conducting AIDS tests”). The statute provides that such test results are confidential, Tex. Health & Safety Code Ann. § 81.103(a), and provides both civil and criminal penalties for violations of the Act. See generally Tex. Health & Safety Code Ann. §§ 81.103, 81.104.

Our research reveals the only Texas Supreme Court case to discuss the meaning of “test result” under the Act is Garcia. In that case, Balderas, an HIV-positive hemophiliac, and his wife, Garcia, sued Santa Rosa Health Care Corporation for negligent, grossly negligent, reckless, or intentional breach of its duty to notify them of Balderas’s possible exposure to HIV/AIDS. The supreme court concluded a medical provider did not have a duty to notify a spouse that she was at risk of exposure to the HIV virus. Garcia, 964 S.W.2d at 942. The court noted that, under the language of the Act, a spouse could not be notified until the patient tested positive for AIDS or HIV. The court stated:

The Act defined a “test result” as “any statement or assertion that any identifiable individual is positive, negative, at risk, ... or any other statement that indicates that an identifiable individual has or has not been tested for AIDS or •HIV infection....” ... If Santa Rosa had advised Garcia that she could possibly ,be exposed to the HIV virus by contact with Balderas, the notice logically would have had to include a statement or assertion that Balderas was at risk of having the virus, or that he had not yet been tested for the virus. Either way, the notice falls within the statutory definition of a test result.

Garcia, 964 S.W.2d at 942-43 (emphasis in original). Thus, Santa Rosa was prohibited from notifying Garcia she was at risk, and in fact would have been subject to sanctions under the Act for doing so. Garcia, 964 S.W.2d at 943.

Garcia, however, is distinguishable from this ease. Santa Rosa was aware Balderas was at risk of AIDS or HIV infection because it had been involved, although minimally, in Balderas’s medical care. Santa Rosa gave Balderas referrals to other facilities to receive injections of a blood-clotting agent used to treat his hemophilia. Santa Rosa sent notices to Balderas encouraging him to be tested, and knew — at least as far as its own records — Balderas had not been tested. See Garcia, 964 S.W.2d at 943 (“The record is clear that, in spite of its repeated efforts to set up appointments with Balderas to do so, Santa Rosa never tested Balderas for the HIV virus.”). In contrast, appellants had no such knowledge, had no connection to ap-pellee’s medical care, and were not seeking to require appellee to be tested under section 81.102. While the Garcia court’s interpretation of “test results” was very-broad, as there was no actual “test” taken yet from which there were “results,” still Santa Rosa had reason to know Balderas was at risk of HIV infection from his previous medical treatment. See Garcia, 964 S.W.2d at 942. Appellee’s interpretation of the statute, however, would extend this broad reading even further to situations completely unrelated to any testing under subchapter F of Chapter 81 of the Act. No court has so extended the Act, and we decline to do so here. See, e.g., Buchanan v. Mayfield, 925 S.W.2d 135, 139-140 (Tex.App.-Waco 1996, orig. proceeding) (confidentiality provisions of Act did not apply to allow dentist to keep patient’s identity secret in action by another patient claiming that due to dentist’s negligence she drank from same cup as first patient).

Appellee argues the persons liable under the Act for disclosing “test results” cannot be limited to those with any special access to medical records, because a statute was already in place restricting disclosure of actual blood tests or other lab reports when the Act was passed. See Tex. Occ. Code Ann. § 159.002 (Vernon 2004) (entitled “Confidential Communications”). He argues any such limitation on the language of the Act would render the Act’s confidentiality provisions meaningless, and cites Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1988), for the proposition that we must give effect to all words of a statute and not treat any statutory language as surplusage. The two statutory provisions differ. The Occupations Code provision begins with “a communication between a physician and a patient” or “a record of the identity, diagnosis, evaluation or treatment of a patient by a physician” and provides that a person who receives a confidential communication or record may not disclose the information. See Tex. Occ. Code Ann. §§ 159.002(a), (b), and (c). The statutory language of the Act at issue here is broader, not limited to physician-patient communications or tangible records. See Tex. Health & Safety Code Ann. § 81.101(5) (“test result” is “any statement that indicates that an identifiable individual has or has not been tested”). This broader language does not become sur-plusage, however, by reading it in its context in the section of the Act imposing liability upon “[a] person that possesses or has knowledge of a test result” who releases or discloses the result or makes it known. Tex. Health & Safety Code Ann. § 81.103(a).

Our holding is limited to the circumstances of this case, in which appellants did not possess or have knowledge that appellee had or had not been tested for AIDS or HIV infection, and had no knowledge of or connection to appellee’s medical care, history, records, or other health or medical information. See Tex. Health & Safety Code Ann. § 81.101(5) (“ ‘test result’ means any statement that indicates that an identifiable individual has or has not been tested for AIDS or HIV infection ..., including a statement or assertion that the individual is positive, negative, at risk, or has or does not have a certain level of antigen or antibody”); § 81.103(a) (“a person that possesses or has knowledge of a test result may not release or disclose the test result or allow the test result to become known ... ”).

Because appellee’s claim under the Act fails as a matter of law, summary judgment was also proper on his conspiracy claim. See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996) (defendant’s liability for conspiracy depends on participation in some underlying tort for which plaintiff seeks to hold at least one of named defendants liable). Appellants established there was no genuine issue as to any material fact and they were entitled to judgment as a matter of law on the issues expressly set out in their motion. Therefore, the trial judge erred in denying appellants’ motion for summary judgment. See Tex.R. Civ. P. 166a(c). We reverse the judgment of the trial court and render judgment that ap-pellee take nothing.

      . The article reported appellee’s name in the quoted sentence.