Luke Nuttall v. Dallas Independent School

AFFIRM; and Opinion Filed June 17, 2024.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00877-CV

LUKE NUTTALL, Appellant
V.
DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-15006

MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Kennedy
On our own motion, we withdraw our opinion of May 13, 2024, vacate our

judgment of same date, and substitute this opinion in its place. In this interlocutory

appeal from the trial court’s dismissal of certain claims Luke Nuttall asserted against

Dallas Independent School District (“DISD”) for lack of subject-matter jurisdiction,

Nuttall, appearing pro se, asserts DISD waived its immunity when it removed the

case to federal court, and, alternatively, if DISD did not waive immunity by

removing the case, the trial court nevertheless had jurisdiction over his claims. In

addition, Nuttall claims he did not receive proper notice before the trial court
dismissed his claims.1 We affirm the trial court’s order dismissing Nuttall’s

Education Code, breach of contract, Whistleblower Act, and tort claims. Because

all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P.

47.4.

BACKGROUND

On December 13, 2019, DISD hired Nuttall to teach geometry at Hillcrest

High School for the remainder of the 2019–2020 school year. Because DISD hired

Nuttall mid-way through the school year, it prorated his salary based on the

workdays that remained in the school year. Nuttall believed that in calculating his

salary in this way, DISD was engaging in a prohibited double-prorating scheme.

On January 27, 2020, Nuttall filed a Level I grievance with DISD regarding

his compensation. He asserted that his compensation did not comply with sections

21.401 and 21.402 of the Texas Education Code2 and was significantly lower than

the salary DISD offered to pay him. Nuttall’s grievance was heard on February 11,

2020, and denied on February 19 in its entirety with a finding that his claims were

without merit.

1
While Nuttall lists five issues in his brief, he acknowledges that his main arguments are (a) DISD
waived its immunity by voluntarily invoking the jurisdiction of the federal court (issue 1), (b) he was not
given proper notice before the hearing on DISD’s plea to the jurisdiction (issues 2 and 4), and (c) the court,
independent of DISD’s removal of the case, has subject-matter jurisdiction over his claims (issue 3). In his
fifth issue, Nuttall asserts he should have been given an opportunity to amend his pleading to rectify any
deficiencies in same. It appears Nuttall’s fifth issue relates to his second and fourth issues.
2
Section 21.401 sets for the minimum service required by a contract between the school district and
the educator. TEX. EDUC. CODE § 21.401. Section 21.402 sets forth the minimum salary schedule for
certain professional staff. Id. § 21.402.
–2–
On February 26, Nuttall filed a Level II grievance appeal. A hearing was

conducted on the appeal, and the appeal was denied on September 17 with a finding

that Nuttall had been paid “in accordance with the law and District policy” and was

“significantly more than the state minimum.”

On September 17, Nuttall filed a Level III grievance appeal and requested a

hearing before DISD’s Board of Trustees. The Board of Trustees conducted a

hearing on Nuttall’s appeal on October 22 and voted unanimously to deny same.

The record does not contain any indication that Nuttall appealed the Board of

Trustee’s decision on his compensation to the Commissioner of Education.

Nuttall continued his employment at Hillcrest High School during the 2020–

2021 school year. In the fall of 2020, during the COVID-19 pandemic, DISD

reopened schools for in-person instruction and required all teachers to physically

return to campuses by September 17, 2020. If a teacher wanted to work remotely

after September 17, he or she was required to request either an alternative work

arrangement or an accommodation under the Americans with Disabilities Act

(“ADA”) or apply for leave. If the teacher’s request or application was not approved,

he or she was expected to physically report to campus on September 17.

Nuttall submitted requests for an alternative work arrangement and for an

accommodation to work remotely. DISD denied his requests, and Nuttall refused to

return to campus. After giving Nuttall several warnings, DISD sent him a Final

Return to Work Notice on November 9. The notice advised Nuttall that the

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information he submitted with his request for an ADA accommodation was

insufficient. DISD directed Nuttall to return to work, apply for leave, submit specific

medical information from his health care provider, or submit a separation form. The

notice further advised Nuttall that his failure to initiate one of the stated options by

November 16 might result in a recommendation for termination. Nuttall did not

initiate any of the stated options by November 16.

DISD’s Benefits Review Committee referred the matter of Nuttall’s

employment to the Legal Review Committee to consider potential termination of

same. On December 9, the Legal Review Committee voted to recommend

termination of Nuttall’s employment.

On January 5, 2021, DISD emailed a notice of recommended termination,

dated December 16, 2020, to Nuttall.

On January 15, Nuttall filed a request for a hearing with the Texas Education

Agency (“TEA”), Commissioner of Education, under Chapter 21, Subchapter F of

the Texas Education Code, regarding the Notice of Recommended Termination.

Thereafter, an Independent Hearing Examiner (“IHE”) conducted an evidentiary

hearing and, on April 28, issued a written recommendation, in which the IHE found

Nuttall failed to perform his duties in a manner a person of ordinary prudence would

have done under similar circumstances and acted in a manner inconsistent with the

continued existence of the employer–employee relationship. The IHE concluded

that Nuttall’s conduct violated Board policy as stated in the notice of recommended

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termination. The IHE further found Nuttall abandoned his job, good cause existed

to terminate his contract, recommended termination of his contract, and noted that

Nuttall secured a teaching position in China starting in August 2021. On May 13,

DISD’s Board of Trustees unanimously voted to terminate Nuttall’s contract.

On June 1, Nuttall filed a petition for review with the Commissioner of

Education appealing the Board of Trustees’ decision to terminate his employment

contract. On July 15, the Commissioner of Education denied Nuttall’s Chapter 21

administrative appeal finding DISD had legitimate reasons for terminating his

employment.

On October 8, 2020, Nuttall, representing himself, filed suit against DISD

asserting what appear to be claims under the Fair Labor Standards Act (“FLSA”),

the Texas Education Code, the Texas Whistleblower Act, the Texas Tort Claims Act

(“TTCA”), and the Texas Public Information Act (“PIA”). On November 9, DISD

removed the case to federal court on the basis of federal-question jurisdiction due to

the FLSA claim. Thereafter, Nuttall amended his complaint twice, and DISD moved

to dismiss his second amended complaint. On March 9, 2023, the federal court

granted DISD’s motion in part, dismissing Nuttall’s FLSA claim with prejudice, and

remanding his remaining state-law claims to the state district court.

On August 8, 2023, in the state-court action, DISD filed a plea to the

jurisdiction and motion to dismiss Nuttall’s claims, supported by evidence,

requesting that the court dismiss Nuttall’s Education Code and breach-of-contract

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claims because he did not exhaust mandatory administrative remedies and Nuttall’s

Whistleblower Act and tort claims because he did not establish a waiver of DISD’s

immunity. On August 9, DISD gave Nuttall notice that its plea would be heard on

August 17. Nuttall filed a response on August 16 asserting he had not been given

proper notice of DISD’s plea to the jurisdiction and hearing thereon and requesting

a continuance to compile relevant evidence. On August 17, the trial court granted

DISD’s plea to the jurisdiction and dismissed Nuttall’s Education Code, breach of

contract, Whistleblower Act and tort claims with prejudice for lack of subject-matter

jurisdiction.3 This appeal followed.4 See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(8) (permitting an interlocutory appeal from an order granting a plea to

the jurisdiction by a governmental unit).

GOVERNMENTAL IMMUNITY

Governmental units, including school districts, are immune from suit unless

the state waives immunity. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d

755, 770 (Tex. 2018). Absent an express and unequivocal waiver of immunity, a

court does not have subject-matter jurisdiction over a suit against a governmental

unit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether the

3
DISD did not move to dismiss Nuttall’s PIA claim. It appears that claim remains pending in the trial
court.
4
Nuttall asks this Court to consider documents he includes in the appendix to his brief that are not in
the appellate record. We may not consider documents in an appendix that are not in the appellate record.
TEX. R. APP. P. 34.1; Bertrand v. Bertrand, 449 S.W.3d 856, 863 n.8 (Tex. App.—Dallas 2014, no pet.).
–6–
trial court has subject-matter jurisdiction is a matter of law that is reviewed on appeal

de novo. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010).

Governmental immunity is properly asserted in a plea to the jurisdiction.

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). A

plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional

facts, or both. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226–

27 (Tex. 2004). If a jurisdictional challenge implicates the merits of the plaintiff’s

cause of action and the plea to the jurisdiction includes evidence, the trial court

reviews the relevant evidence to determine if a fact issue exists. Id. at 227. In that

case, the standard for granting or denying the plea generally mirrors that of a

summary judgment. Id. at 227–28.

DISCUSSION

I. Removal to Federal Court

In his first issue, Nuttall claims DISD waived its governmental immunity

when it removed the case to federal court. In doing so, Nuttall relies upon certain

decisions from the United States Supreme Court and the Fifth Circuit, each

addressing immunity under the Eleventh Amendment to the United States

Constitution.5 Lapides v. Board of Regents of University System of Georgia, 535

U.S. 613 (2002); Alden v. Maine, 527 U.S. 706 (1999); Meyers ex rel. Benzing v.

5
The Eleventh Amendment provides, “The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI.
–7–
Texas, 410 F.3d 236 (5th Cir. 2005). These cases are distinguishable from the

current case.

As an initial matter we note, the Eleventh Amendment immunity at issue in

the cases on which Nuttall relies applies to state but not local governmental entities.

See Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (holding that the

Eleventh Amendment bars suits brought by private citizens against states unless the

state has waived or Congress has abrogated state immunity). The Texas Supreme

Court has stated, “We hold that an independent school district is more like a city or

county than it is like an arm of the State of Texas and is amenable to suit in federal

court under the Eleventh Amendment of the United States Constitution.” San

Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 284 (Tex. 1996).

Nuttall contends that Alden clarified the waiver upon removal to federal court

refers to all immunity from suit. More particularly, Nuttall contends Alden

establishes there is no such thing as Eleventh Amendment immunity separate and

apart from state sovereign immunity. Alden, 527 U.S. at 713. Thus, it appears

Nuttall is urging Lapides and Meyers are instructive here notwithstanding the fact

that DISD lacks any claim of immunity from suit in federal court based upon the

Eleventh Amendment.

To the extent the Eleventh Amendment distinction here is inconsequential, we

note that Lapides is distinguishable for other reasons. In Lapides, the Board of

Regents of the University System of Georgia and university officials removed the

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case to federal court on the basis of federal-question jurisdiction. The board

conceded that a state statute had waived sovereign immunity from state-law claims

in state court, but claimed immunity had not been waived when those claims were

brought in federal court. Lapides, 535 U.S. at 617. After removing the case, the

board asserted its federal-court immunity to Lapides’ claim under the Georgia Tort

Claims Act. Id. at 616. The issue before the United States Supreme Court in Lapides

narrowly addressed whether the board waived its Eleventh Amendment immunity

by its affirmative litigation conduct when it removed the case to federal court.

See id. at 617. The court expressly limited its answer to the context of state-law

claims, with respect to which there has been an explicit waiver of immunity from

state-court proceedings. Id. The court concluded that, by voluntarily agreeing to

remove the case to federal court, the board invoked the federal court’s jurisdiction

and waived its otherwise valid objection to litigation of a matter—i.e. state law

claims—in a federal forum. Id. at 623–24. The court noted that its ruling did not

address “the scope of waiver by removal in a situation where the State’s underlying

sovereign immunity from suit has not been waived or abrogated in state court.” Id.

at 617–18. The Supreme Court limited its holding in Lapides to the facts presented

in that case. Those facts are materially different from the facts of this case. Unlike

the board of regents, DISD has not conceded that Nuttall could sue it in state court.

To the contrary, DISD argues that it has not waived immunities from suit or liability

provided by state law. Moreover, waiver by litigation conduct transpires only when

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a state employs procedural maneuvering to gain an unfair tactical advantage.

Bergemann v. Rhode Island Dep’t of Env’t Mgmt, 665 F.3d 336, 342 (1st Cir. 2011).

In Lapides, the board sought to regain, by a change in forum, a litigation advantage

(immunity) that the state had already renounced by general statute. Here, no such

advantage was sought by DISD when it removed the case to federal court because

DISD was not attempting to regain immunity that had already been renounced.

Accordingly, we conclude Lapides is distinguishable from the current case and does

not support Nuttall’s assertion DISD waived all immunity from suit when it removed

the case to federal court.

Nuttall also cites the Fifth Circuit’s decision in Meyers claiming it supports

his contention that Lapides applies to governmental entities as a waiver of sovereign

immunity in any private suit governmental entities remove to federal court. In

Meyers, after removing the case to federal court, the State of Texas moved to dismiss

plaintiffs’ claim for lack of subject matter jurisdiction on the grounds of Texas’s

Eleventh Amendment immunity. Meyers, 410 F.3d at 240. In Meyers, the court

noted that the Lapides holding was limited to the context of state law claims, with

respect to which the State had waived immunity in its own courts. Id. at 244. The

court went on to state, “[W]hen Texas removed this case to federal court it

voluntarily invoked the jurisdiction of the federal courts and waived its immunity

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from suit in federal court.”6 Id. at 255. In denying a petition for rehearing and

rehearing en banc in Meyers, the Fifth Circuit explained that when a state entity

removes to federal court a private state court suit based on a federal-law claim, it

only waives its right to object to the federal court’s jurisdiction based on its Eleventh

Amendment immunity. Meyers ex rel. Benzing v. Tex., 454 F.3d 503, 504 (5th Cir.

2006). This waiver “does not affect or limit the [state entity’s] ability to assert

whatever rights, immunities or defenses are provided for by its own sovereign

immunity law to defeat the claims against [it] finally and on their merits in the federal

courts.” Id. Meyers did not address a governmental entities’ ability to assert

immunity from suit for state-law claims upon remand.

In this case, after the federal court dismissed Nuttall’s FLSA claim, it declined

to exercise supplemental jurisdiction over Nuttall’s remaining state-law claims and

instead remanded them back to state court. None of the cases cited by Nuttall are on

6
We note that the challenge of interpreting Lapides has divided the circuit courts of appeals. Some
courts have concluded that removal does not waive a state’s sovereign immunity to a claim unless the state
previously had waived its immunity to such a claim in state court proceedings. See Bergmann v. Rhode
Island Dep’t Env’t Mgmt, 665 F.3d 336, 342 (1st Cir. 2011) (concluding Stewart and Watters best reasoned
and most faithful to teachings of Lapides court); Stewart v. N. Carolina, 393 F.3d 484, 490 (4th Cir. 2005)
(noting North Carolina did not seek to regain immunity it had previously abandoned, it merely sought to
have sovereign immunity issue resolved by federal court rather than state court); Watters v. Wash. Metro.
Area Transit Auth., 295 F.3d 36, 42 n. 13 (D.C. Cir. 2002) (concluding because WMATA signatories had
not waived immunity in their own courts the narrow holding of Lapides does not apply). Others read
Lapides as operating more mechanically and take the position that, regardless of the circumstances, removal
always waives immunity. See Bd. of Regents of the Univ. of Wis. Sys. v. Phx. Int’l Software, Inc., 653 F.3d
448, 461 (7th Cir. 2011); Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004). The Third Circuit, the Tenth
Circuit, and the Eleventh Circuit have followed the Fifth Circuit in concluding removal of federal claims
generally does not waive immunity from payment of money damages but does waive immunity from suit.
See Tant v. Oklahoma, 754 F.3d 1158, 1174 (10th Cir. 2014); Stroud v. McIntosh, 722 F.3d 1294, 1301
(11th Cir. 2013); Lombardo v. Pa. Dep’t of Pub. Welfare, 540 F.3d 190, 198–200 (3d Cir. 2008).

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all fours with this case because they do not address or concern a governmental

entity’s ability to assert immunity from suit for state law claims in state court upon

remand after removal to federal court.

Nuttall fails to cite any opinions in which Lapides or Meyers have been

applied in the same context as the facts before us. Nor have we found any controlling

authority to support his argument that by removing the case to federal court, DISD

waived any right to rely on governmental immunity under state law. We overrule

Nuttall’s first issue.

II. Notice of Hearing on Motion to Dismiss

In his second and fourth issues, Nuttall challenges the notice given on the

hearing on DISD’s plea to the jurisdiction. He urges the trial court erred in granting

DISD’s plea to the jurisdiction and motion to dismiss because DISD did not comply

with the requirements of Rule 91a of the Texas Rules of Civil Procedure (Dismissal

of Baseless Causes of Action). More particularly, Nuttall contends that DISD was

required to give the 21-day notice specified in Rule 91a and that had he been given

such notice he would have filed an amendment to cure any pleading deficiencies. In

addition, he contends that DISD failed to comply with Rule 91a’s requirement that

a motion to dismiss be filed within 60 days after the challenged pleading is served.

While DISD styled its filing as a plea to the jurisdiction and motion to dismiss,

it claimed the court lacked subject-matter jurisdiction over the challenged claims.

The filing did not include a Rule 91a motion to dismiss, rather it requested dismissal

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of the claims due to a lack of jurisdiction. Moreover, the record shows the trial court

considered the filing to be a plea to the jurisdiction and specifically found that “the

Plea to the Jurisdiction should and hereby is GRANTED.”7 Thus, DISD was not

required to comply with Rule 91a’s requirements.

Nuttall further urges that because the standard for a plea to the jurisdiction

that relies on evidence generally mirrors the summary judgment standard under Rule

166(c) of the Texas Rules of Civil Procedure, the 21-day notice provision set forth

in Rule 166(c) should apply to the plea as well. A party may challenge the trial

court’s subject-matter jurisdiction using either the plea-to-the-jurisdiction or

summary-judgment vehicle. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

554 (Tex. 2000) (“The 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.” (footnotes omitted)). Here, DISD used a plea to the

jurisdiction to challenge the trial court’s subject-matter jurisdiction, and thus, the

twenty-one-day notice period applicable to motions for summary judgment did not

apply. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228–29

(Tex. 2004) (explaining that when a plea to the jurisdiction challenges the

7
If DISD’s filing were construed to be a Rule 91a motion, we would have to dismiss this appeal for
lack of jurisdiction because nothing permits an interlocutory appeal from an order that grants a Rule 91a
motion to dismiss that does not dispose of all pending claims. See CIV. PRAC. & REM. § 51.014; see
also DRC Constr. v. Pickle, No. 01-20-00576-CV, 2022 WL 479918, at *3–4 (Tex. App.—Houston [1st
Dist.] Feb. 17, 2022, no pet.) (mem. op.).
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jurisdictional facts, the summary-judgment standard of proof applies, but the twenty-

one-day-notice requirement does not).

In his fifth issue, Nuttall contends that the trial court should have continued

the hearing on DISD’s plea to allow him to properly state his retaliation claim under

an anti-discrimination statute rather than the Whistleblower Act. But he did not seek

a continuance on this basis.8 Rather, he claimed he needed additional time “to allow

him the opportunity to make filings of evidence and a complete reply after having

adequate time to research the claims and assertions of [DISD], and compile relevant

evidence.”9 Accordingly, Nuttall has not preserved this complaint on appeal. TEX.

R. APP. P. 33.1.

Nevertheless, we note that the scheduling of a hearing of a plea to the

jurisdiction is left to the discretion of the trial court, which is in the best position to

evaluate the appropriate time frame for hearing a plea in any particular case.

Miranda, 133 S.W.3d at 229. Given the history of this case, the fact that the trial

court began the hearing on DISD’s plea to the jurisdiction by stating, “The Court is

well familiar with you all,” the fact that Nuttall did not demonstrate to the trial court

8
We note in passing that, in the conclusion to his response to DISD’s plea to the jurisdiction, Nuttall
asked the court to identify the shortcomings of his complaint and allow an opportunity to amend. Nuttall
did not make any request for a continuance for purposes of amending his petition at the hearing on DISD’s
plea to the jurisdiction he focused solely on the ability to obtain evidence.
9
Notwithstanding the fact that on appeal Nuttall does not claim he needed additional time to conduct
discovery, we note that had he argued this point we would apply an abuse-of-discretion standard of review
to the trial court’s decision not to grant a continuance because the trial court has firsthand knowledge of the
development of a case. Patten v. Johnson, 429 S.W.3d 767, 776 (Tex. App.—Dallas 2014, pet. denied).
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an ability to overcome the jurisdictional challenges, and the fact that Nuttall had

numerous opportunities prior to the hearing on the plea to the jurisdiction to amend

his pleadings, we cannot conclude the trial court abused its discretion in not

continuing the hearing to afford Nuttall an opportunity to further amend his

petition.10

We overrule Nuttall’s second, fourth and fifth issues.

III. Subject-Matter Jurisdiction

In his third issue, Nuttall asserts the trial court had jurisdiction over his

Education Code, breach-of-contract, Whistleblower Act, and tort claims. DISD

responds asserting the trial court properly granted its plea to jurisdiction dismissing

Nuttall’s Education Code and breach-of-contract claims because Nuttall failed to

exhaust mandatory administrative remedies and Nuttall’s Whistleblower Act and

tort claims because he failed to establish a waiver of DISD’s immunity.

A. Violation of the Education Code and Breach-of-Contract Claims

The Texas Legislature has granted the Commissioner of Education exclusive

jurisdiction over certain claims involving the “school laws of this state” and over

actions or decisions of any school district board that violate the “school laws of this

state” or any provision of a written contract between the school district and a school

district employee, if a violation causes or could cause monetary harm to the

10
We note that Nuttall’s PIA claim remains pending. He has not indicated why, subsequent to the grant
of the plea to the jurisdiction, he did not assert the claim or claims he contends he should have been given
the opportunity to plead.
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employee. TEX. EDUC. CODE § 7.057(a) (1)–(2). The “school laws of the state”

include all provisions of Titles I and II of the Education Code and the administrative

rules adopted under those titles. Id. § 7.057(f)(2). The aggrieved person must file

the petition for review with the Commissioner within 45 calendar days after a school

board decision is first communicated to them and failure to comply with this

deadline “will result in dismissal of the case.” 19 TEX. ADMIN. CODE § 157.1049(a).

The petitioner must raise all of his issues in the petition, or they are waived and will

not be considered. Id. § 157.1051(b). A party must exhaust his or her administrative

remedies before courts can exercise jurisdiction. Clint Indep. Sch. Dist. v. Marquez,

487 S.W.3d 538, 546 (Tex. 2016).

After the Commissioner rules on the administrative appeal, if the petitioner

disagrees with the decision and wishes to pursue the claim in court, he must appeal

the decision to a district court in Travis County, name the Commissioner as a party

along with the school district, and serve the Commissioner with citation of the suit.

EDUC. § 7.057(d).

In his live pleading at the time the trial court granted DISD’s plea to the

jurisdiction, Nuttall asserted that the compensation DISD paid him violated the

requirements for teacher pay in sections 21.401 and 21.402 of the Education Code,

which are provisions in Title II of the Education Code and are part of the “school

laws of the state.” In addition, he claimed that his salary violated the terms of his

employment contract. Thus, Nuttall alleged violations of the school laws of the state

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and a breach of his written contract with DISD and claimed he suffered monetary

harm thereby. Accordingly, these claims fell within the exclusive jurisdiction of the

Commissioner of Education and Nuttall was required to exhaust the administrative

remedies before pursuing a claim in court. See Marquez, 487 S.W.3d 545–46.

In support of its plea to the jurisdiction, DISD presented the declaration of its

General Counsel, Romona Soto, establishing the following:

 On October 22, 2020, the DISD Board of Trustees held a Level III
Grievance hearing on a compensation-related grievance by Nuttall.

 The Board unanimously voted to deny Nuttall’s grievance.

 Nuttall was present when the Board announced its decision to deny his
grievance on October 22, 2020.

 DISD was not aware, and had no records, that Nuttall timely and properly
filed a petition for review with the Commissioner of Education under
Texas Education Code, section 7.057 regarding the Board’s decision to
deny his grievance.

 DISD was not aware, and had no records, that the Commissioner of
Education has ever docketed a case filed by Nuttall against DISD under
Texas Education Code section, 7.057 about compensation.

 DISD was not aware, and had no records, that the Commissioner of
Education has ever notified DISD of the filing of any petition by Nuttall
against DISD under Texas Education Code, section 7.057 about
compensation or asked DISD to respond to any such filing.

 DISD was not aware, and had no records, that the Commissioner of
Education has ever issued any decision under Texas Education Code,
section 7.057 regarding any compensation-related claim by Nuttall.

Thus, DISD established Nuttall failed to exhaust his administrative remedies.

Nuttall did not present any evidence he started or completed the appeal process with
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the Commissioner of Education with respect to his compensation complaints.11

Consequently, the record established Nuttall did not exhaust the mandatory

administrative remedies for his claims DISD’s compensation decisions violated the

Education Code and his employment contract.

Citing section 7.057(a-1) of the Education Code, Nuttall contends that he was

not required to exhaust administrative remedies before filing suit. Section 7.057(a-

1) is set forth in Title II of the Education Code. It states “[a] person is not required

to appeal to the commissioner before pursuing a remedy under a law outside of Title

I or this title [the school laws of the state] to which Title I or this title [the school

laws of the state] make reference or with which Title I or this title [the school laws

of the state] require[] compliance.” EDUC. § 7.057(a-1). Section 7.057(a-1) does

not relieve a person from appealing to the Commissioner of Education when the

alleged violations of law fall under Title I or Title II of the Education Code. Id. In

this case, Nuttall’s claims that DISD violated sections 21.401 and 21.402 of the

Education Code and breached his employment contract. Sections 21.401 and 21.402

fall under Title II of the Education Code. Accordingly, pursuant to section 7.057(a),

Nuttall was required to appeal his compensation claims to the Commissioner of

Education before seeking relief from the court. Id. § 7.057(a); Marquez, 487 S.W.3d

at 546.

11
We further note that Nuttall did not comply with the requirement that he file suit in Travis County
and name the Commission of Education as a party.
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Nuttall also claims that he is exempt from the requirement to exhaust

administrative remedies because his compensation claims involve “issues of pure

law.” While Nuttall’s claims involved questions of law, such as state law

requirements for teacher compensation, they do not solely present questions of law.

Rather, his compensation claims involve questions of historical fact, including the

terms of his employment agreement, how much he earned, how many days he

worked, how compensation was prorated, and DISD’s general schedule for

compensating teachers and policies and procedures. In addition, Nuttall’s

compensation claims involve mixed questions of law and fact, such as whether DISD

violated the Education Code’s requirements for teacher pay. Nuttall’s compensation

claims do not present purely legal questions that a court must resolve, absolving him

of his failure to exhaust administrative remedies. See, e.g., Marquez, 487 S.W.3d at

557 (finding plaintiffs’ allegations that a school district improperly allocated state

funds to schools, in violation of Title II of the Education Code, involved questions

of historical fact, questions of law, and mixed questions of law and fact, and,

therefore, applying the exhaustion of remedies requirement).

Because Nuttall was required to exhaust administrative remedies and to

follow the procedures set forth in Title II of the Education Code and failed to do so,

we conclude the trial court did not err in dismissing his Education Code and breach-

of-contract claims for lack of subject-matter jurisdiction.

B. Whistleblower Act Claim

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In his live pleading at the time the trial court granted DISD’s plea to the

jurisdiction, with respect to his Whistleblower Act claim, Nuttall asserted DISD

retaliated against him for reporting alleged disability discrimination in violation of

the ADA to the Equal Employment Opportunity Commission (“EEOC”). The

Whistleblower Act does not apply “to retaliation arising from employment

discrimination complaints.” See City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex.

2008). Separate anti-discrimination statutes “afford[] public employees . . . a

specific and tailored anti-retaliation remedy” that those employees are “obliged to

use.” Id. at 156. Accordingly, immunity for a Whistleblower Act claim has not been

waived, and the trial court lacked jurisdiction to consider Nuttall’s claim relating to

the EEOC charge. See Wu v. Tex. A & M Int’l Univ., No. 04-11-00180-CV, 2011

WL 5406263, at *3 (Tex. App.—San Antonio Nov. 9, 2011, no pet.) (mem. op.).

Nuttall’s allegation that DISD retaliated against him for reporting alleged

employment discrimination to the EEOC does not establish a waiver of DISD’s

governmental immunity for his Whistleblower Act claim.

Nuttall concedes his assertion of a claim under the Whistleblower Act fails.

He contends the facts pleaded in support of a disability related retaliation should

have been asserted under Chapter 21 of the Texas Labor Code or the ADA rather

than under the Whistleblower Act. He claims DISD should have specially excepted

to the pleadings before filing its plea to the jurisdiction. But a governmental unit is

not precluded from challenging pleadings in a plea to the jurisdiction, when it could

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have done so via special exceptions or motions for summary judgment. State v.

Lueck, 290 S.W.3d 876, 884 (Tex. 2009); Miranda, 133 S.W.3d at 225–26.

Moreover, Nuttall did not preserve any complaint about the lack of special

exceptions because he did not raise it below. TEX. R. APP. P. 31.1.

C. Tort Claims

The TTCA provides a limited waiver of immunity for certain suits against

governmental entities and caps recoverable damages. See CIV. PRAC. & REM.

§ 101.023. The TTCA generally waives governmental immunity to the extent that

liability arises from the “use of a motor-driven vehicle or motor-driven equipment”

or from “a condition or use of tangible personal or real property.” Id. § 101.021.

For school districts, the TTCA’s waiver is even narrower, encompassing only tort

claims involving the use or operation of motor vehicles. Id. § 101.051. If a TTCA

plaintiff cannot satisfy “the burden to affirmatively demonstrate the trial court’s

jurisdiction” by showing that the claim falls within a statutory waiver of immunity,

the court must dismiss the suit. Town of Shady Shores v. Swanson, 590 S.W.3d 544,

550 (Tex. 2019).

Nuttall’s tort claims appear to concern his employment contract,

compensation and PIA request. None of his claims arise from the operation or use

of a motor vehicle. Thus, none of his tort claims fit within the limited scope of the

TTCA’s waiver of DISD’s governmental immunity for tort claims. Because the

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TTCA does not waive DISD’s immunity from suit for any of Nuttall’s tort claims,

the trial court properly dismissed those claims for lack of subject-matter jurisdiction.

Having concluded that the trial court did not err in determining it lacked

subject-matter jurisdiction over Nuttall’s Education Code, breach of contract,

Whistleblower Act, and tort claims, we overrule his third issue.

CONCLUSION

We affirm the trial court’s August 17, 2023, order dismissing Nuttall’s

Education Code, breach of contract, Whistleblower Act, and tort claims.

/Nancy Kennedy/
NANCY KENNEDY
230877F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LUKE NUTTALL, Appellant On Appeal from the 116th Judicial
District Court, Dallas County, Texas
No. 05-23-00877-CV V. Trial Court Cause No. DC-20-15006.
Opinion delivered by Justice
DALLAS INDEPENDENT Kennedy. Justices Molberg and
SCHOOL, Appellee Nowell participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

Judgment entered this 17th day of June 2024.

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