In University of Houston v. Barth, Cause No. 01-04-00828-CV (Houston [1st Dist.] July 18, 2005), the Houston Court of Appeals again holds that the limitations provisions of the Whistleblower Act (involving exercise of internal government appeal processes) is jurisdictional. The Court holds that Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) ("holding that failure to allege and prove a statutory prerequisite to a statutory cause of action are not jurisdictional defects") is inapplicable in the Whistleblower context (or at least has not been applied in the Whistleblower context by the Texas Supreme Court) and that the Houston Court will therefore follow its own previous precedent in this area until the Supreme Court speaks to the issue.
In doing so, the Court acknowledges that:
"[O]ther appellate courts have held that the limitations and grievance provisions of the Whistleblower Act are not jurisdictional, but the court points out that none of those cases has been approved by the Texas Supreme Court. Furthermore, this court has specifically held otherwise in Tex. S. Univ. v. Carter, 84 S.W. 3d 787 (Tex.App. Houston [1st Dist.] 2002, no pet.). The court adds that the Whistleblower Act requires initiation of remedies through a government's grievance or appeal process, but it does not require exhaustion of those remedies. "Thus, whether the Act's requirements are jurisdictional is open to question..."
The concurring opinion states:
"This case presents the question of whether a plaintiff's failure to comply with the Texas Whistleblower Act's statutory requirements deprives a trial court of its subject matter jurisdiction. . . . The emerging jurisprudence of the Texas Supreme Court, however, strongly signals that it does not. Instead, absent a framework in which statutory requirements expressly define a trial court's power to hear the subject matter, such requirements are not jurisdictional, but rather operate only as elements necessary to a recovery."