Texas State University and Texas State University System v. Stuart Patrick Wilkinson — Memorandum Opinion by Chief Justice Brister

Reversed and Rendered and Majority Memorandum Opinion and Concurring
and Dissenting Opinion filed October 22, 2026.
In The
Fifteenth Court of Appeals
NO. 15-25-00028-CV
TEXAS STATE UNIVERSITY AND TEXAS STATE UNIVERSITY
SYSTEM, Appellants
V.
STUART PATRICK WILKINSON, Appellee
On Appeal from the 22nd District Court
Hays County, Texas
Trial Court Cause No. 24-1162
MEMORANDUM OPINION
In this interlocutory appeal from the denial of a plea to the jurisdiction, we
consider the sufficiency of Stuart Patrick Wilkinson’s pleadings alleging retaliation
under the Texas Whistleblower Act and violations of the free-speech guarantees of
the state and federal constitutions. We hold that Wilkinson has failed to plead facts
affirmatively demonstrating a waiver of immunity sufficient to establish subject-
matter jurisdiction of his claims. Accordingly, we reverse and render judgment

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dismissing this suit with prejudice.
Background
Wilkinson is a computer programmer and analyst employed at Texas State
University, where he has worked for more than 37 years.1 In August of 2023,
Wilkinson filed a whistleblower complaint with the Federal Bureau of Investigation
reporting his concern that elements of the University’s software usage practice
violated state and federal law.
Wilkinson alleges that after making his report to the FBI, he was subjected to
a variety of retaliatory actions ranging in severity from the merely unpleasant or
unkind to the materially harmful. Wilkinson claims that he has been insulted by his
coworkers, that the University has “refus[ed] to consider promotional opportunities”
for him, that his supervisors have deprived him of long-enjoyed networking
opportunities and given him unfairly low performance evaluations, that he has
suffered lost wages and the loss of potential earnings, and that he has, in toto, been
“constructively terminated.”
Wilkinson sued Texas State University and the Texas State University System
for 	injunctive 	and 	monetary 	relief, 	asserting 	claims 	under 	(1) the 	Texas
Whistleblower Act, (2) Article I, § 8 of the Texas Constitution, and (3) the First
Amendment to the United States Constitution.2 Defendants filed an answer asserting
sovereign immunity, and five months later a plea to the jurisdiction seeking
dismissal 	because 	his 	pleadings 	affirmatively 	negate 	jurisdiction. 	Wilkinson
amended his complaint, and Defendants filed a corresponding amended plea to the
1 	It is not clear from the record whether Wilkinson is employed by Texas State University,
by the Texas State University System, or by both. We need not address that ambiguity due to the
nature of our disposition.
2 	Defendants assert that Wilkinson also brought an “indiscernible tort claim.” Wilkinson
expressly denies bringing or continuing to bring any such claim. Accordingly, we restrict our
analysis to Wilkinson’s clearly and avowedly pleaded claims.

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jurisdiction. Following a hearing and post-hearing briefing, the trial court denied
Defendants’ operative plea to the jurisdiction.
Standard of Review
Sovereign immunity implicates a trial court’s jurisdiction, and thus is properly
raised in a plea to the jurisdiction. 3 A plea to the jurisdiction “may challenge the
pleadings, the existence of jurisdictional facts, or both.”4 Where, as here, a plea to
the jurisdiction only “challenges the pleadings, we determine if the plaintiff has
alleged facts affirmatively demonstrating subject-matter jurisdiction.”5 In all such
cases, we “construe the pleadings liberally in favor of the plaintiff and look to the
pleader’s intent.”6 But “when sovereign immunity is asserted, it is not the State’s
burden to show that the plaintiff could never state a viable claim. Instead, it is the
plaintiff’s burden to plead facts that affirmatively state a viable claim.”7 This burden
is not met by “mere reference” to the elements of a statute waiving sovereign
immunity; it requires a plaintiff to plead jurisdictional facts sufficient to establish
the elements of his claim. 8 “We review the denial of a plea to the jurisdiction de
novo.”9
Discussion
Defendants 	assert 	that 	Wilkinson 	has 	not 	pleaded 	facts 	affirmatively
demonstrating jurisdiction over either his Whistleblower Act claims or his free-
speech claims. We address each in turn.
3 	Christ v. Texas Dep’t of Transp., 664 S.W.3d 82, 86 (Tex. 2023).
4 	Alamo Heights ISD v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).
5 	Id.
6 	Tex. Tech Univ. Sys. v. Martinez, 691 S.W.3d 415, 419 (Tex. 2024).
7 	Matzen v. McLane, 659 S.W.3d 381, 394 (Tex. 2021) (emphasis added).
8 	Dohlen v. City of San Antonio, 643 S.W.3d 387, 392–93 (Tex. 2022).
9 	City of Houston v. Gomez, 716 S.W.3d 161, 164 (Tex. 2025).

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I. 	Whistleblower Act – the missing facts on jurisdictional deadlines
The Texas Whistleblower Act shields public employees from retribution for
reporting governmental wrongdoing, thus encouraging the people most likely to
observe legal abuses to report it.10 The Act prohibits state and local governmental
entities from suspending, terminating, or taking any “adverse personnel action”
against an employee “who in good faith reports a violation of law by the employing
governmental entity or another public employee.” 11 The Act creates a private cause
of action for those who suffer retaliation from an employing official or agency, and
waives sovereign immunity to the extent of liability permitted by the Act.12
The Act establishes three jurisdictional preconditions for suit, each of which
a plaintiff “must strictly abide by … to obtain relief.” 13 First, an employee must
report illegal government activity to “an appropriate law enforcement authority.”14
Second, before filing suit an employee must file an internal grievance with an
employer within 90 days after any alleged retaliation.15 Third, an employee must
also file suit within 90 days of the retaliation (excluding time spent in internal
grievances).16
Defendants do not contest that the FBI is an appropriate law enforcement
10 	“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
Buckley v. Valeo, 424 U.S. 1, 67 (1976) (quoting Louis Brandeis, OTHER PEOPLE ’ S M ONEY 62
(National Home Library Foundation ed. 1933)).
11 	TEX. GOV’ T CODE § 554.002(a).
12 	Id. §§ 554.003 (cause of action), 554.0035 (waiver of immunity).
13 	City of Madisonville v. Sims, 620 S.W.3d 375, 379 (Tex. 2020).
14 	TEX. GOV’ T CODE § 554.002(b) (defining an “appropriate law enforcement authority”); see
also City of Elsa v. Gonzalez, 325 S.W.3d 622, 628 (Tex. 2010) (dismissing for failure to report to
an appropriate authority).
15 	TEX. GOV’ T CODE § 554.006; Tex. A&M Univ. Dep’t of Transp., Parking Servs. Dep’t v.
Reeves, 708 S.W.3d 312, 318 (Tex. App.—15th Dist. 2025, no pet.) (holding that the internal
grievance requirement is a statutory prerequisite to suit).
16 	TEX. GOV’ T CODE §§ 554.006(d).

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authority. But they do contest that Wilkinson’s pleadings met the three other
preconditions: (1) a truly “adverse personnel action,” (2) a timely filed internal
grievance, and (3) a timely filed lawsuit. For purposes of this appeal, we assume
parts of Wilkinson’s conclusory pleadings might qualify as adverse personnel
actions, or at least on remand might be amended to do so. But he has completely
failed to allege facts supporting the other two.
The Act says an employee “must initiate” an internal grievance before filing
suit and within 90 days after the alleged retaliation occurred or “was discovered by
the employee through reasonable diligence.” 17 It also mandates that an employee
“must sue” within 90 days after the alleged retaliation “occurred” or “was discovered
by the employee through reasonable diligence.” 18 Since these two deadlines are
otherwise the same, the Act postpones the deadline for the latter (filing suit) while
the former (a grievance) is pending. 19
In his original petition, Wilkinson pleaded that he reported illegal activity to
the FBI “on or about August 17, 2023.” But he did not file suit until May 3, 2024—
271 days later. It is not possible to tell whether his suit was timely or not, since the
deadline runs not from the report of unlawful activity but from the retaliation.
Wilkinson never alleged when any retaliation by the Defendants occurred, when he
filed a grievance, whether the grievance remains pending, or when it might have
been concluded. Since the statutory deadlines are jurisdictional, 20 without pleading
those specifics Wilkinson has not met his burden to affirmatively establish subject-
17 	Id. § 554.006(b).
18 	Id § 554.005.
19 	Id. § 554.006(c); see also id. § 554.006(d) (providing that if grievance takes more than 60
days, employee may either (1) continue with the grievance and file suit within 30 days after its
completion, or (2) terminate the grievance and file suit within the original 90-day filing period).
20 	See Sims, 620 S.W.3d at 379 (holding that Whistleblower Act’s filing deadline is a
“jurisdictional statutory prerequisite to suit”).

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matter jurisdiction and waiver of immunity.
The Defendants challenged this absence of explanation or detail in their
original plea to the jurisdiction. Wilkinson responded with a first amended petition
that stated bald conclusions but no jurisdictional facts: “Plaintiff appropriately
initialed 	[sic] 	his 	administrative 	remedies. 	Plaintiff 	invoked 	the 	Texas 	State
University grievance procedure within 90 days after the adverse employment action
was discovered and timely filed suit.” This platitude acknowledges the statutory
requirements but states no facts to support them. If that were enough, every
whistleblower could get around governmental immunity simply by pleading “I did
everything the statute requires.”
All of the relevant dates—when Wilkinson experienced retaliation, when he
initiated 	internal 	grievance 	procedures, 	and 	when 	those 	procedures 	were
exhausted—are matters of record and could have been pleaded by Wilkinson had he
exercised reasonable diligence. While the Act does not expressly require that such
dates be pleaded, 21 the rules governing subject-matter jurisdiction effectively require
it in this context when immunity is a defense. The trial court erred by denying the
plea to the jurisdiction on the Whistleblower Act claim.
II. 	Constitutional Free-Speech – no waiver for monetary claims
Wilkinson also pleaded claims of retaliation for exercising his free speech
claim rights under Article I, § 8 of the Texas Constitution and the U.S. First
Amendment. His pleadings do not affirmatively establish jurisdiction of either claim.
Wilkinson’s state-law constitutional claim fails because the only relief he
requested 	was 	monetary 	damages—specifically, 	past 	and 	future 	lost 	wages,
unspecified other pecuniary losses, exemplary damages, interest, and attorney fees.
Such claims are barred by immunity. Texas law has long recognized that “there is
21 	Cf. TEX. LAB. CODE § 21.201(c)(2).

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no implied private right of action for damages under the Texas Constitution when
an 	individual 	alleges 	the 	violation 	of 	speech 	and 	assembly 	rights.” 22
“[G]overnmental immunity generally bars suits for retrospective monetary relief.” 23
While it “does not preclude prospective injunctive remedies,” 24 nothing in the trial
court record or Wilkinson’s response brief in this Court contains a single request for
“equitable” or “injunctive” relief. His suit “has always been and remains a suit for
money damages.” 25
On his federal claim, Wilkinson’s petition did note that “state officials and
employees may be sued in their official capacities under 42 U.S.C. § 1983 for
equitable and prospective relief concerning violations of the Texas Constitution.”
But his petition requests neither equitable nor prospective relief, and he candidly
admits in his response brief in this Court that he purposefully “has not pled a direct
claim under 42 U.S.C. 1983.” Accordingly, the trial court erred by denying the plea
to the jurisdiction as to these claims too.
III. Disposition: remand or render?
The remaining question is whether this suit should be dismissed with or
without prejudice. In Harris County v. Sykes in 2004, the Texas Supreme Court
attempted to settle conflicting opinions on that issue in cases like this where a
petition 	was 	amended 	in 	response 	to 	a 	plea 	to 	the 	jurisdiction 	but 	is 	still
jurisdictionally defective. 26 The Court said dismissal should be “with prejudice”:
If a plaintiff has been provided a reasonable opportunity to amend after
a governmental entity files its plea to the jurisdiction, and the plaintiff’s
22 City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995); accord, Tex. Med. Res.,
LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 432–33 (Tex. 2023).
23 	City of El Paso v. Heinrich, 284 S.W.3d 366, 368–69 (Tex. 2009).
24 	Id.
25 	Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 849 (Tex. 2009).
26 	136 S.W.3d 635 (Tex. 2004).

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amended pleading still does not allege facts that would constitute a
waiver of immunity, then the trial court should dismiss the plaintiff’s
action. Such a dismissal is with prejudice because a plaintiff should not
be permitted to relitigate jurisdiction once that issue has been finally
determined.27
Two concurring justices predicted that the rule adopted by the Court “appears to be:
dismissal is usually without prejudice, but sometimes with prejudice.” 28 And one can
still find cases remanding a defective amended pleading for the plaintiff to try
again. 29
This 	is 	perhaps 	unavoidable. 	The 	rules 	of 	appellate 	procedure 	lodge
substantial discretion in appellate courts to render or remand: “When reversing a
trial court’s judgment, the court [of appeals] must render the judgment that the trial
court should have rendered, except when … the interests of justice require a
remand.” 30 The latter is a matter of discretion that depends on the facts of each case. 31
In general, the cases indicate that a second chance is required when the
plaintiff did not have a reasonable opportunity to amend in the trial court, such as
when the jurisdictional defect was raised the day before the hearing on the plea, 32 or
27 	Id. at 639.
28 	Id. at 641–42 (Brister, J., concurring) (“Today’s holding can only be explained as another
ad hoc effort to modernize an obsolete common-law plea. Because a plea to the jurisdiction is not
so much a motion as a category of complaints, it will always be hard to say with particularity or
uniformity what rules ought to apply.”).
29 	Abbott v. Mexican Am. Legislative Caucus, 647 S.W.3d 681, 704 (Tex. 2022); Dohlen v.
City of San Antonio, 643 S.W.3d 387, 398 (Tex. 2022); RSL Funding, LLC v. Pippins, 499 S.W.3d
423, 429 (Tex. 2016); Rusk State Hosp. v. Black, 392 S.W.3d 88, 100 (Tex. 2012).
30 	TEX. R. APP . P. 43.3.
31 	FieldTurf USA, Inc. v. Pleasant Grove ISD, 642 S.W.3d 829, 836 (Tex. 2022) (“However,
even 	when 	rendition 	would 	otherwise 	be 	warranted, 	our 	rules 	of 	appellate 	procedure
allow discretion for a remand when ‘the interests of justice require’ it.”) (quoting TEX. R. APP . P.
43.3(b)).
32 	See Tex. Tech Univ. Sys. v. Martinez, 691 S.W.3d 415, 424 (Tex. 2024) (remanding to
allow repleading when jurisdictional defect was not raised until the day before the plea hearing).

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for the first time on appeal. 33 But if a plaintiff had a reasonable opportunity to plead
additional facts in response to jurisdictional objections—either from personal
knowledge or facts obtained in discovery—but declined to do so, then dismissal with
prejudice is appropriate. 34 Nor is remand for an amended pleading required simply
to “cure” the jurisdictional defect by adding claims never before asserted.35 Finally,
dismissal is also appropriate if a plaintiff on appeal is still unable to explain how a
jurisdictional defect could possibly be cured. 36
In this case, neither in the trial court nor on appeal has Wilkinson provided
dates showing when the alleged retaliation occurred, when he filed a grievance, and
whether any grievance is still pending or when it was concluded. He had no need of
discovery or more time to respond, since as a matter of law these dates were within
his personal knowledge or matters of record he could have discovered easily with
reasonable diligence. 37 And having chosen to plead only for monetary damages on
his state constitutional claim, and not to plead a federal § 1983 claim, his pleadings
affirmatively demonstrate incurable defects of jurisdiction.
The dissent would give Wilkinson a second opportunity to replead because
his first effort “could not take into account a court’s ruling that his pleadings [were]
33 	See Rusk State Hosp., 392 S.W.3d at 100 (remanding to allow repleading when
jurisdictional defect was raised for the first time on appeal).
34 	See City of Austin v. Quinlan, 669 S.W.3d 813, 823 (Tex. 2023) (“[W]hen a governmental
entity asserts immunity and the plaintiff fails to allege or show facts demonstrating a waiver of
immunity after having a reasonable opportunity to conduct discovery directed to the issue, the
case is appropriately dismissed.”) (emphasis added).
35 	Clint ISD v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016).
36 	Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (noting plaintiff on
appeal “has made no suggestion as to how to cure the jurisdictional defect”); see also Matzen v.
McLane, 659 S.W.3d 381, 395–96 (Tex. 2021) (noting plaintiff on appeal has alleged “no viable
theories of liability”); see also Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491–92
(Tex. 2012).
37 	See TEX. GOV’ T CODE §§ 554.005(2), 556.006(b)(2).

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insufficient.” As already noted, when a plea to the jurisdiction is first granted on
appeal, some cases dismiss without prejudice, 38 and others dismiss with prejudice. 39
In this case, there was no such court ruling until ours today. But since Wilkinson
could have repleaded the missing dates within days (assuming they would help him),
allowing him to postpone doing so until after 18 months on appeal looks more like
an abuse of the administration of justice rather than a vindication of it.
Conclusion
A court must decide jurisdictional issues like governmental immunity “at its
earliest opportunity,”40 and bouncing cases back and forth between courts for a
plaintiff to try again and again wastes public money and judicial resources.
Wilkinson had a reasonable opportunity to respond to the Defendants’ jurisdictional
objections, but failed to do so. Accordingly, we reverse the trial court’s denial of the
Defendants’ plea to the jurisdiction and render judgment dismissing Wilkinson’s
claims with prejudice.
/s/ Scott A. Brister
Scott A. Brister
Chief Justice
Panel consists of Chief Justice Brister and Justices Field and Farris. (Farris, J.,
concurring and dissenting).
38 	See Tex. Tech Univ. Sys. v. Martinez, 691 S.W.3d 415, 425–26 (Tex. 2024) (dismissing
without prejudice and remanding for repleading where plea to the jurisdiction was first granted on
appeal).
39 	See City of Austin v. Quinlan, 669 S.W.3d 813, 817 (Tex. 2023) (dismissing with prejudice
where plea to the jurisdiction was first granted on appeal); see also Sykes, 136 S.W.3d at 639 (“If
a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files
its plea to the jurisdiction,” dismissal should be “with prejudice.”).
40 	Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).