Preview
Electronically Filed
11/22/2023 12:00 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
CAUSE NO. C-3125-23-J
SOFIA A. KENNEDY IN THE DISTRICT COURT
PLAINTIFF,
V. 430TH JUDICIAL DISTRICT
PHARR-SAN JUAN- ALAMO
INDEPENDENT SCHOOL DISTRICT
DEFENDANT, HIDALGO COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT’S PLEA TO THE JURISDICTION
TO THE HONORABLE DISTRICT COURT:
Plaintiff Sofia Kennedy’s First Amended Petition contains sufficient facts showing each of
the required section 554.002(a) elements of a whistleblower claim such that the school district’s
immunity has been waived, and the trial court has subject-matter jurisdiction. The purported failure
to allege and prove a statutory prerequisite to a statutory cause of action such as a whistleblower
claim is not a jurisdictional defect. Plaintiff Sofia Kennedy exhausted her administrative remedies
by invocation of the school district’s formal grievance procedure relating to suspension or
termination or adverse personnel action.
ARGUMENT AND AUTHORITIES
A. Standard of Review.
A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action without
regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000). The plea challenges the trial court's jurisdiction over the subject matter of a
pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004); Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807 (Tex. App.–Corpus Christi
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Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
2004, no pet.). A plea must be decided without delving into the merits of the case. Todaro v. City
of Houston, 135 S.W.3d 287, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.). However, if the
plea challenges jurisdictional facts, a court should consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227. But, if the
evidence creates a fact issue on the jurisdictional question, the trial court cannot grant the plea,
and must allow the fact finder to resolve the dispute. Id. at 227-28. When a plea to the jurisdiction
challenges the pleadings, the pleadings are construed liberally in favor of the plaintiff, and unless
challenged with evidence, are accepted as true. Id. at 226-227.
Subject matter jurisdiction is a question of law; therefore, an appellate court reviews de
novo a trial court's ruling on a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129
S.W.3d at 807.
B. Governmental Immunity and the Texas Whistleblower Act.
Sovereign immunity and its counterpart, governmental immunity, exist to protect the State
and its political subdivisions from lawsuits and liability for money damages. Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).
Governmental immunity has two components: (1) immunity from liability; and (2)
immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from
liability shields the State from judgments. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 853 (Tex. 2003). Immunity from suit bars an action against the State unless the State
expressly consents to the suit. Tex. Dep’t of Transp. v Jones, 8 S.W.3d 636, 638 (Tex. 1999). The
party suing the government entity must establish the State’s consent, which may be alleged either
by reference to a statute or to express legislative permission. Id.
Electronically Filed
11/22/2023 12:00 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
Governmental immunity is waived under the Texas Whistleblower Act, if the plaintiff: (1)
is a public employee; and (2) alleges a violation of Chapter 554 of the Texas Government Code.
See Tex. Gov’t Code § 554.0035 (West 2021). The parties do not dispute that Plaintiff Sofia
Kennedy is a public employee. To establish a violation of Section 554.002 of the Texas
Government Code, a plaintiff must allege the following elements: (1) she was a public employee;
(2) she made a good faith report of a violation of law by her employing governmental entity or
another public employee; (3) she made the report to an appropriate law enforcement authority; and
(4) she suffered retaliation as a result of making the report. See Tex. Gov’t Code § 554.002(a)
(West 2021).
The Supreme Court has emphasized that “[a]lthough the section 554.002(a) elements must
be included within the pleadings…the [employee’s] burden of proof with respect to these
jurisdictional facts ‘does not involve a significant inquiry into the substance of the claims.’” State
v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000)).
Plaintiff Sofia Kennedy’s pleadings contain sufficient facts showing each of the required
section 554.002(a) elements of a whistleblower claim such that the school district’s immunity has
been waived and the trial court has subject-matter jurisdiction.
Plaintiff Sofia Kennedy Pleaded She Was a Public Employee
Under the Texas Whistleblower Act, “public employee” is defined as “an employee or
appointed officer other than an independent contractor who is paid to perform services for a state
or local governmental entity.” Tex. Gov't. Code § 554.001(4) (West 2021). “Local governmental
entity” includes a “school district.” Tex. Gov't. Code § 554.001(2)(A) (West 2021).
Electronically Filed
11/22/2023 12:00 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
These allegations which must be taken as true, show that Plaintiff Sofia Kennedy was a
public employee satisfying the first element of a whistleblower claim.
Plaintiff Sofia Kennedy Pleaded a Good Faith Report of a Violation of Law committed by
the School District.
Under the Whistleblower Act, a “good faith” report of a violation of law means the
employee must have believed she was reporting conduct that constituted a violation of law and her
belief must have been reasonably based on her training. and experience. See City of Elsa v.
Gonzalez, 325 S.W.3d 622, 626 (Tex. 2010) (citing Tex. Dep’t of Transp. v. Needham, 82 S.W.3d
314, 320 (Tex. 2002)).
An audit being performed further supports that her belief was reasonable, and the report
was made in good faith. (1) Section 39.02 of the Texas Penal Code (Abuse of Official Capacity);
(2) Section 39.06 of the Texas Penal Code (Misuse of Official Information); and (3) Title 18,
United State Code, Section 201 (Bribery of Public Officials and Witnesses). These allegations,
which must be taken as true, show that Plaintiff Sofia Kennedy made a good faith report of a
violation of law by her employing governmental entity or another public employee satisfying the
second element of a whistleblower claim.
Plaintiff Sofia Kennedy Pleaded a Report Was Made to an Appropriate Law Enforcement
Authority.
“[A] report is made to an appropriate law enforcement authority if the authority is a part of
a state or local governmental entity or of the federal government that the employee in good faith
believes is authorized to (1) regulate under or enforce the law alleged to be violated in the report;
or (2) investigate or prosecute a violation of criminal law.” Tex. Gov't. Code § 554.002(b) (West
2021).
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
Whether a particular entity is an appropriate law-enforcement authority is a question of
law. Needham, 82 S.W.3d at 318. “Police officers and district attorneys are appropriate law
enforcement authorities because they are authorized to investigate or prosecute violations of
criminal law.” Town of Flower Mound v. Teague, 111 S.W.3d 742, 755, fn. 9 (Tex. App.—Fort
Worth 2003, pet. denied) (citing Tex. Code Crim. Proc. art. 2.01). Additionally, the FBI has
authority to investigate all federal crime not assigned exclusively to another federal agency. 28
U.S.C. § 533.
These allegations, which must be taken as true, show that Plaintiff Sofia Kennedy made
the report to an appropriate law-enforcement authority satisfying the third element of a
whistleblower claim.
4. Plaintiff Sofia Kennedy Pleaded She Suffered an Adverse Personnel Actions Because
of the Report.
To prove a claim for protection under the Texas Whistleblower Act, the plaintiff must
establish that she was terminated, was suspended, or suffered an adverse personnel action because
of the report. Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 632-33 (Tex. 1995). Under
the Whistleblower Act, “personnel action” means an action that “affects a public employee’s
compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex.
Gov’t Code § 554.001(3) (West 2021).
The Supreme Court of Texas held that the Texas Whistleblower Act does not explicitly
require an employee to prove a causal link between the report and the subsequent discrimination.
City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). The causation to be shown is the
employee suffered discriminatory conduct by her employer that would not have occurred when it
did if the employee had not reported the illegal conduct. Id.; Hinds, 904 S.W.2d at 636. This
Electronically Filed
11/22/2023 12:00 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
causation standard has been described as a “but for” causal nexus requirement. Hurley v. Tarrant
Cty., 232 S.W.3d 781, 786 (Tex. App.—Fort Worth, 2007, no pet.) (citing Rogers v. City of Fort
Worth, 89 S.W.3d 265, 280 (Tex. App.—Fort Worth 2002, no pet.)); Alejandro v. Robstown Indep.
Sch. Dist., 131 S.W3d 663, 667 (Tex. App.—Corpus Christi 2004, no pet).
Additionally, the Texas Whistleblower Act does not require an employee to show that her
reporting illegal conduct was the sole reason for her employer's adverse actions. Hinds, 904 S.W.2d
at 634; City of McAllen v. Torres, 2005 Tex. App. LEXIS 3800, at *21 (Tex. App.—Corpus Christi
May 19, 2005, pet. denied). A plaintiff need not prove her Texas Whistleblower Act claim to
satisfy the jurisdictional hurdle, and the burden of proof with respect to the jurisdictional facts does
not involve a significant inquiry into the substance of the claims. Lueck, 290 S.W.3d at 881.
Plaintiff Sofia Kennedy’s First Amended Petition establishes a causal connection between
the reports and her need to utilize the grievance procedure. Both of which adverse personnel
actions are subject to the Texas Whistleblower Act. See Tex. Gov’t Code §§ 554.001(3),
554.002(a).
These allegations, which must be taken as true, show that Kennedy suffered retaliation as
a result of making the report satisfying the fourth element of a whistleblower claim.
In 1986, the Supreme Court of Texas held that when a cause of action derives from a statute,
the statutory provisions are mandatory and exclusive and must be complied with in all respects or
the action is not maintainable for lack of jurisdiction. Grounds v. Tolar Indep. Sch. Dist., 707
S.W.2d 889, 891 (Tex. 1986) However, fourteen (14) years later in 2000, the Supreme Court held
that the failure to allege and prove a statutory prerequisite to a statutory cause of action was not a
jurisdictional defect. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000).
Electronically Filed
11/22/2023 12:00 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
WHEREFORE, Plaintiff Sofia Kennedy prays that the Defendant’s Plea to the Jurisdiction
be denied as moot in light of Plaintiff’s First Amended Petition. In the alternative, Plaintiff Sofia
Kennedy prays that the Defendant’s Plea to the Jurisdiction be denied. Additionally, Plaintiff Sofia
Kennedy prays for such other and further relief to which she may be entitled.
Respectfully submitted,
LAW OFFICES OF JOSE G. GONZALEZ
4129 N. 22nd Street, Suite 8
McAllen, Texas 78504
Telephone: (956) 731-4324
Facsimile: (956) 731-4327
By:/s/Jose G. Gonzalez
Jose G. Gonzalez
State Bar No. 24053234
/s/Carlos E. Hernandez Jr.
Carlos E. Hernandez, Jr., Of Counsel
State Bar No. 00787681
Attorneys for Plaintiff
SOFIA A. KENNEDY
Electronically Filed
11/22/2023 12:00 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
Certificate of Service
I hereby certify that a true and correct copy of the above and foregoing has been served on all
attorneys of record as listed below on this the 22nd day of November 2023.
David J. Campbell
Texas Bar No. 24057033
dcampbell@808west.com
Johan Holter
Texas Bar No. 24106107
jholter@808west.com
Kristi Godden
Texas Bar No. 24079577
kgodden@808west.com
O’HANLON, DEMERATH & CASTILLO, PC
808 West Ave
Austin, Texas 78701
Telephone (512)494-9949
Facsimile (512)494-9919 /s/Carlos E. Hernandez, Jr.
Carlos E. Hernandez, Jr
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Joedaniel Rodriguez on behalf of Carlos Hernandez
Bar No. 787681
joedaniel.jgglaw@gmail.com
Envelope ID: 81906987
Filing Code Description: Answer
Filing Description: Plaintiff's Response to Defendant's Plea to the
Jurisdiction
Status as of 11/22/2023 12:02 PM CST
Associated Case Party: PHARR-SAN JUAN- ALAMO INDEPENDENT SCHOOL
DISTRICT
Name BarNumber Email TimestampSubmitted Status
David Campbell dcampbell@808west.com 11/22/2023 12:00:04 PM SENT
Kristi Godden kgodden@808west.com 11/22/2023 12:00:04 PM SENT
Johan Holter jholter@808west.com 11/22/2023 12:00:04 PM SENT
Kathryn French kfrench@808west.com 11/22/2023 12:00:04 PM SENT
Alyssa Aleman aaleman@808west.com 11/22/2023 12:00:04 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Carlos EHernandez carlos.hernandezjr@gmail.com 11/22/2023 12:00:04 PM SENT
Joedaniel Rodriguez joedaniel.jgglaw@gmail.com 11/22/2023 12:00:04 PM SENT
Marilynn Villarreal Marilynn.jgglaw@gmail.com 11/22/2023 12:00:04 PM SENT
Preview
Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria CAUSE NO. C-3125-23-J SOFIA A. KENNEDY IN THE DISTRICT COURT PLAINTIFF, V. 430TH JUDICIAL DISTRICT PHARR-SAN JUAN- ALAMO INDEPENDENT SCHOOL DISTRICT DEFENDANT, HIDALGO COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT’S PLEA TO THE JURISDICTION TO THE HONORABLE DISTRICT COURT: Plaintiff Sofia Kennedy’s First Amended Petition contains sufficient facts showing each of the required section 554.002(a) elements of a whistleblower claim such that the school district’s immunity has been waived, and the trial court has subject-matter jurisdiction. The purported failure to allege and prove a statutory prerequisite to a statutory cause of action such as a whistleblower claim is not a jurisdictional defect. Plaintiff Sofia Kennedy exhausted her administrative remedies by invocation of the school district’s formal grievance procedure relating to suspension or termination or adverse personnel action. ARGUMENT AND AUTHORITIES A. Standard of Review. A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807 (Tex. App.–Corpus Christi Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria 2004, no pet.). A plea must be decided without delving into the merits of the case. Todaro v. City of Houston, 135 S.W.3d 287, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.). However, if the plea challenges jurisdictional facts, a court should consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227. But, if the evidence creates a fact issue on the jurisdictional question, the trial court cannot grant the plea, and must allow the fact finder to resolve the dispute. Id. at 227-28. When a plea to the jurisdiction challenges the pleadings, the pleadings are construed liberally in favor of the plaintiff, and unless challenged with evidence, are accepted as true. Id. at 226-227. Subject matter jurisdiction is a question of law; therefore, an appellate court reviews de novo a trial court's ruling on a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807. B. Governmental Immunity and the Texas Whistleblower Act. Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Governmental immunity has two components: (1) immunity from liability; and (2) immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from liability shields the State from judgments. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2003). Immunity from suit bars an action against the State unless the State expressly consents to the suit. Tex. Dep’t of Transp. v Jones, 8 S.W.3d 636, 638 (Tex. 1999). The party suing the government entity must establish the State’s consent, which may be alleged either by reference to a statute or to express legislative permission. Id. Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria Governmental immunity is waived under the Texas Whistleblower Act, if the plaintiff: (1) is a public employee; and (2) alleges a violation of Chapter 554 of the Texas Government Code. See Tex. Gov’t Code § 554.0035 (West 2021). The parties do not dispute that Plaintiff Sofia Kennedy is a public employee. To establish a violation of Section 554.002 of the Texas Government Code, a plaintiff must allege the following elements: (1) she was a public employee; (2) she made a good faith report of a violation of law by her employing governmental entity or another public employee; (3) she made the report to an appropriate law enforcement authority; and (4) she suffered retaliation as a result of making the report. See Tex. Gov’t Code § 554.002(a) (West 2021). The Supreme Court has emphasized that “[a]lthough the section 554.002(a) elements must be included within the pleadings…the [employee’s] burden of proof with respect to these jurisdictional facts ‘does not involve a significant inquiry into the substance of the claims.’” State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). Plaintiff Sofia Kennedy’s pleadings contain sufficient facts showing each of the required section 554.002(a) elements of a whistleblower claim such that the school district’s immunity has been waived and the trial court has subject-matter jurisdiction. Plaintiff Sofia Kennedy Pleaded She Was a Public Employee Under the Texas Whistleblower Act, “public employee” is defined as “an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity.” Tex. Gov't. Code § 554.001(4) (West 2021). “Local governmental entity” includes a “school district.” Tex. Gov't. Code § 554.001(2)(A) (West 2021). Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria These allegations which must be taken as true, show that Plaintiff Sofia Kennedy was a public employee satisfying the first element of a whistleblower claim. Plaintiff Sofia Kennedy Pleaded a Good Faith Report of a Violation of Law committed by the School District. Under the Whistleblower Act, a “good faith” report of a violation of law means the employee must have believed she was reporting conduct that constituted a violation of law and her belief must have been reasonably based on her training. and experience. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 626 (Tex. 2010) (citing Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002)). An audit being performed further supports that her belief was reasonable, and the report was made in good faith. (1) Section 39.02 of the Texas Penal Code (Abuse of Official Capacity); (2) Section 39.06 of the Texas Penal Code (Misuse of Official Information); and (3) Title 18, United State Code, Section 201 (Bribery of Public Officials and Witnesses). These allegations, which must be taken as true, show that Plaintiff Sofia Kennedy made a good faith report of a violation of law by her employing governmental entity or another public employee satisfying the second element of a whistleblower claim. Plaintiff Sofia Kennedy Pleaded a Report Was Made to an Appropriate Law Enforcement Authority. “[A] report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law.” Tex. Gov't. Code § 554.002(b) (West 2021). Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria Whether a particular entity is an appropriate law-enforcement authority is a question of law. Needham, 82 S.W.3d at 318. “Police officers and district attorneys are appropriate law enforcement authorities because they are authorized to investigate or prosecute violations of criminal law.” Town of Flower Mound v. Teague, 111 S.W.3d 742, 755, fn. 9 (Tex. App.—Fort Worth 2003, pet. denied) (citing Tex. Code Crim. Proc. art. 2.01). Additionally, the FBI has authority to investigate all federal crime not assigned exclusively to another federal agency. 28 U.S.C. § 533. These allegations, which must be taken as true, show that Plaintiff Sofia Kennedy made the report to an appropriate law-enforcement authority satisfying the third element of a whistleblower claim. 4. Plaintiff Sofia Kennedy Pleaded She Suffered an Adverse Personnel Actions Because of the Report. To prove a claim for protection under the Texas Whistleblower Act, the plaintiff must establish that she was terminated, was suspended, or suffered an adverse personnel action because of the report. Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 632-33 (Tex. 1995). Under the Whistleblower Act, “personnel action” means an action that “affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex. Gov’t Code § 554.001(3) (West 2021). The Supreme Court of Texas held that the Texas Whistleblower Act does not explicitly require an employee to prove a causal link between the report and the subsequent discrimination. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). The causation to be shown is the employee suffered discriminatory conduct by her employer that would not have occurred when it did if the employee had not reported the illegal conduct. Id.; Hinds, 904 S.W.2d at 636. This Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria causation standard has been described as a “but for” causal nexus requirement. Hurley v. Tarrant Cty., 232 S.W.3d 781, 786 (Tex. App.—Fort Worth, 2007, no pet.) (citing Rogers v. City of Fort Worth, 89 S.W.3d 265, 280 (Tex. App.—Fort Worth 2002, no pet.)); Alejandro v. Robstown Indep. Sch. Dist., 131 S.W3d 663, 667 (Tex. App.—Corpus Christi 2004, no pet). Additionally, the Texas Whistleblower Act does not require an employee to show that her reporting illegal conduct was the sole reason for her employer's adverse actions. Hinds, 904 S.W.2d at 634; City of McAllen v. Torres, 2005 Tex. App. LEXIS 3800, at *21 (Tex. App.—Corpus Christi May 19, 2005, pet. denied). A plaintiff need not prove her Texas Whistleblower Act claim to satisfy the jurisdictional hurdle, and the burden of proof with respect to the jurisdictional facts does not involve a significant inquiry into the substance of the claims. Lueck, 290 S.W.3d at 881. Plaintiff Sofia Kennedy’s First Amended Petition establishes a causal connection between the reports and her need to utilize the grievance procedure. Both of which adverse personnel actions are subject to the Texas Whistleblower Act. See Tex. Gov’t Code §§ 554.001(3), 554.002(a). These allegations, which must be taken as true, show that Kennedy suffered retaliation as a result of making the report satisfying the fourth element of a whistleblower claim. In 1986, the Supreme Court of Texas held that when a cause of action derives from a statute, the statutory provisions are mandatory and exclusive and must be complied with in all respects or the action is not maintainable for lack of jurisdiction. Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 891 (Tex. 1986) However, fourteen (14) years later in 2000, the Supreme Court held that the failure to allege and prove a statutory prerequisite to a statutory cause of action was not a jurisdictional defect. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria WHEREFORE, Plaintiff Sofia Kennedy prays that the Defendant’s Plea to the Jurisdiction be denied as moot in light of Plaintiff’s First Amended Petition. In the alternative, Plaintiff Sofia Kennedy prays that the Defendant’s Plea to the Jurisdiction be denied. Additionally, Plaintiff Sofia Kennedy prays for such other and further relief to which she may be entitled. Respectfully submitted, LAW OFFICES OF JOSE G. GONZALEZ 4129 N. 22nd Street, Suite 8 McAllen, Texas 78504 Telephone: (956) 731-4324 Facsimile: (956) 731-4327 By:/s/Jose G. Gonzalez Jose G. Gonzalez State Bar No. 24053234 /s/Carlos E. Hernandez Jr. Carlos E. Hernandez, Jr., Of Counsel State Bar No. 00787681 Attorneys for Plaintiff SOFIA A. KENNEDY Electronically Filed 11/22/2023 12:00 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria Certificate of Service I hereby certify that a true and correct copy of the above and foregoing has been served on all attorneys of record as listed below on this the 22nd day of November 2023. David J. Campbell Texas Bar No. 24057033 dcampbell@808west.com Johan Holter Texas Bar No. 24106107 jholter@808west.com Kristi Godden Texas Bar No. 24079577 kgodden@808west.com O’HANLON, DEMERATH & CASTILLO, PC 808 West Ave Austin, Texas 78701 Telephone (512)494-9949 Facsimile (512)494-9919 /s/Carlos E. Hernandez, Jr. Carlos E. Hernandez, Jr Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Joedaniel Rodriguez on behalf of Carlos Hernandez Bar No. 787681 joedaniel.jgglaw@gmail.com Envelope ID: 81906987 Filing Code Description: Answer Filing Description: Plaintiff's Response to Defendant's Plea to the Jurisdiction Status as of 11/22/2023 12:02 PM CST Associated Case Party: PHARR-SAN JUAN- ALAMO INDEPENDENT SCHOOL DISTRICT Name BarNumber Email TimestampSubmitted Status David Campbell dcampbell@808west.com 11/22/2023 12:00:04 PM SENT Kristi Godden kgodden@808west.com 11/22/2023 12:00:04 PM SENT Johan Holter jholter@808west.com 11/22/2023 12:00:04 PM SENT Kathryn French kfrench@808west.com 11/22/2023 12:00:04 PM SENT Alyssa Aleman aaleman@808west.com 11/22/2023 12:00:04 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Carlos EHernandez carlos.hernandezjr@gmail.com 11/22/2023 12:00:04 PM SENT Joedaniel Rodriguez joedaniel.jgglaw@gmail.com 11/22/2023 12:00:04 PM SENT Marilynn Villarreal Marilynn.jgglaw@gmail.com 11/22/2023 12:00:04 PM SENT