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See Needham, 82 S. Likewise, in Park, the State filed both a plea to the jurisdiction and motion for summary judgment, then appealed the trial court's denial of the motion for summary judgment.
Similar to this case, we reversed the denial of a plea to the jurisdiction in City of Waco v. Lopez, holding that the plaintiff could not bring a valid claim under the Whistleblower Act because a claim under the Commission on Human Rights Act was plaintiff's "exclusive state statutory remedy. See id. Our holding does not mean that Lueck must prove his claim in order to satisfy the jurisdictional hurdle. Although the section Allowing a plaintiff's pleadings to stand on bare allegations, alone, without allowing the State to challenge plaintiff's compliance with the immunity statute, would practically eliminate the use of pleas to the jurisdiction, which we have already approved as the proper "procedural vehicle to challenge subject matter jurisdiction in trial courts for over a century and a half.
The Legislature has also approved of their use by allowing for an appeal from an interlocutory order denying or granting a plea to the jurisdiction.
Nor does our holding mean that the State must challenge the plaintiff's pleadings through the use of a plea to the jurisdiction. We have recognized that "[t]he absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as a motion for summary judgment. Lueck claims that the TxDOT should have objected to his pleadings through the use of special exceptions, and the court of appeals concluded that "a traditional or no-evidence motion for summary judgment is the proper avenue for raising [TxDOT's] concerns that its evidence would negate two essential elements of Lueck's [W]histleblower claim.
While both of these options are available, and certainly not objectionable, we have never held that the State is precluded from challenging pleadings in a plea to the jurisdiction when it could have done so via special exceptions or motions for summary judgment. Since we disapproved of this position in Miranda, S. Because we have held that the Ass'n of Bus.
Air Control Bd. TxDOT argues that Lueck's pleadings do not affirmatively demonstrate jurisdiction because they are incurably defective. As for the report element, Lueck's pleadings affirmatively negate the existence of a reported violation. Lueck's fifth amended petition states that Lueck "believed and reported in good faith that if the Department did not pursue an immediate and positive resolution to Cooper's October 29, demand[,] the Department would violate federal and state law by failing to remedy non-compliance with the federal and state reporting requirements.
Such a regulatory non-compliance of this kind does not equate to a violation of law under which a law enforcement authority regulates or enforces within the meaning of the Whistleblower Act. Further, Lueck attached the e-mail report to his pleadings, and the only discernable violation in the report itself states that TxDOT's current system for reporting traffic data "is not capable of handling this data and will, therefore, never be in compliance.
At most, this reference to a previous violation of a federal standard expresses disagreement with remedial measures taken by TxDOT after it was already knowingly out of compliance.
An internal policy recommendation of this kind is not a report of a violation of law that the Whistleblower Act was designed to protect. Even if this e-mail did report a violation of law, Lueck's supervisor, Mr. Randall, is not an appropriate law enforcement authority to whom such a report should be made. As the head of a division within TxDOT, Randall could neither regulate nor enforce the law that Lueck alleged had been violated.
In fact, Lueck's e-mail report indicates that he knew Randall was not the proper authority within TxDOT to regulate the reported violations because he recommended that Randall have his e-mail "readily available" when discussing the implications of suspending the STARS program with other TxDOT divisions.
This conclusively establishes that Lueck could not have formed a good-faith belief that Randall was authorized to enforce such violations. Therefore, as a matter of law, Lueck's pleadings affirmatively demonstrate that he did not allege a violation under the Whistleblower Act. Brightstar Information Technology Group, Inc. Igal involved the jurisdiction of an administrative agency, not subject-matter jurisdiction in a case where the State asserts a plea to the jurisdiction, claiming that its sovereign immunity is not waived.
However, even if Igal were to control statutes waiving the State's consent to suit, both the immunity provision, section Since both of these arguments made below dispute the proper allegation of a violation, TxDOT did not waive its right to assert that the pleadings negated subject-matter jurisdiction.
See Bland, 34 S. Because we have held that Lueck's pleadings affirmatively negate the trial court's jurisdiction as a matter of law, we need not consider whether the trial court should have considered the TxDOT's evidence at a hearing on its plea to the jurisdiction.
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