Opinion
03-23-00341-CV
06-20-2024
Marcia M. Workman, Appellant v. Texas Commission on Environmental Quality, Appellee
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-002463, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING
Rosa Lopez Theofanis, Justice Before Chief Justice Byrne, Justices Smith and Theofanis
MEMORANDUM OPINION
Marcia M. Workman appeals from the district court's order granting summary judgment and the plea to the jurisdiction of the Texas Commission on Environmental Quality (TCEQ) and dismissing her employment-discrimination suit against TCEQ. We affirm.
BACKGROUND
TCEQ has employed Workman, a Black immigrant from Brazil, in various capacities since 1998. In 2016, she held the title of Spatial Data Manager in the Water Availability Division. During her annual performance review that year, Workman's supervisor reported that she "consistently met" all the requirements of her job. Her supervisor noted that Workman's "proficiency in cartography and map design has improved Team capabilities and the efficiency and quality of the Team outputs" and her "attitude and skills enable her to handle multiple assignments and tight deadlines," but Workman needed improvement in communication and decision-making. For example, senior members of the division had received many complaints from other divisions that Workman had "communicated programmatic issues and concerns with them." Her supervisor coached Workman to communicate those concerns up the "established-chain-of-supervision."
According to TCEQ, a person in that position: "Provides technical expertise and guidance on spatial data acquisition, development, editing and analysis; map design and generation; database design and maintenance; and report generation for the Water Availability Division of the Texas Commission on Environmental Quality."
Per TCEQ policy, Workman and her supervisor met to discuss the review. Workman stated during that meeting that she felt harassed after overhearing a conversation between two coworkers concerning her appearance and accent. The director of the Water Availability Division investigated Workman's allegation but found no evidence of harassment.
Workman's next annual review was similar: her supervisor reported that Workman consistently fulfilled all her job functions but needed improvement in decision-making and communication. For example, the supervisor documented that Workman had "worked on a nonessential project that resulted in overtime hours for the Information Resources Division" rather than her own projects and continued to improperly communicate with others outside her division. In a written memo, the director of the division instructed Workman that she should not send "emails and other communications" outside the division without approval from her supervisor.
In late 2017, Workman filed an administrative charge with the Equal Employment Opportunity Commission (EEOC) alleging race, national origin, or sex discrimination in violation of Title VII of the Civil Rights of Act of 1964. More specifically, she alleged that the negative evaluations were retaliation for complaining about discrimination, which had been motivated by her complaint concerning the conversation she overheard. The EEOC issued her a right-to-sue letter, but she did not file suit.
In the 2018 performance review, Workman's supervisor reported that she did not consistently meet all the expectations of her job. The review notes that Workman had "not accomplished a specific assignment without significant supervision," left many tasks incomplete since the previous review, and had difficulty communicating clearly. Attached to the review is a "recommended action plan" listing steps that she must take to improve her work performance, including enrolling in a class on writing in plain language, and a schedule with the dates she is to work on specific projects.
Later that year, Workman was subpoenaed to testify in a federal lawsuit brought by one of her former coworkers in the Water Availability Division. The coworker alleged that TCEQ fired him because he is Chinese and in retribution for filing a complaint of discrimination. Workman testified in a deposition that she believes TCEQ discriminates against persons who are not white and native speakers of English.
The district court subsequently denied TCEQ's motion for summary judgment. See generally Shiyan Jiang v. Texas Comm'n on Env't Quality, 321 F.Supp.3d 738, 751 (W.D. Tex. 2018).
In May 2019, Workman filed a whistleblower complaint with the Environmental Protection Agency accusing the Water Availability Division of discriminating against African Americans in providing services to the public and in discriminating against her. The EPA rejected the complaint and referred it to TCEQ. The same month, Workman filed a second complaint with the EEOC alleging that TCEQ retaliated against her for the first complaint and for testifying in her coworker's discrimination lawsuit. EEOC issued her a right-to-sue letter, but she did not file a lawsuit.
In the 2019 annual review, Workman's supervisor again rated her as not meeting the requirements of her job and placed her on a Performance Improvement Plan (PIP) to remedy the deficiencies. The PIP identified three essential job functions at which she needed improvement, stated what level of performance was expected, and gave her specific assignments with deadlines. For the duration of her time on the PIP, she was ineligible for alternative work hours but required to work in the office from 8:00 AM to 5:00 PM; all requests for time off would be considered in light of her progress; and no request to attend training, conferences, or events would be approved "unless shown to directly benefit" one of her assignments. After Workman did not sufficiently improve, the PIP was extended in September 2019. Workman completed her PIP successfully in January 2020.
Workman filed a complaint with the EEOC alleging that TCEQ retaliated against her for her two previous EEOC complaints by, among other things, placing her on the PIP without justification and denying her bonuses and promotions. While that charge was pending, Workman filed a pro se lawsuit against TCEQ for violating the Texas Commission on Human Rights Act (TCHRA). See Tex. Labor Code §§ 21.001-.556. She amended her petition four more times. In her second amended petition, Workman dropped her claims under the TCHRA and alleged discrimination in violation of Title VII of the Civil Rights Act.
After the EEOC issued her a right-to-sue letter for her third complaint, Workman amended her petition a third time to include those allegations. Her third amended petition alleged causes of action for discrimination, retaliation, and creating a hostile work environment under Title VII and a section 1983 claim for violating her constitutional right to equal protection. See 42 U.S.C 1983. TCEQ filed a combined plea to the jurisdiction on the Section 1983 claim and a hybrid motion for summary judgment on the Title VII claims ("combined motion").
The combined motion was set for a hearing on December 21, 2022. Seven days before the hearing, Workman amended her pleading a fourth time to reassert the same TCHRA claims and a new claim for violation of the Texas Whistleblower Act. See generally Tex. Gov't Code § 554.003. She simultaneously filed a "Motion for Leave to Add New Defendants" seeking leave "pursuant . . . to Rule 37 of the of the Texas Rules of Civil Procedure" to add her three supervisors-Kim Nygren, Kelly Mills, and Abiy Berehe-as defendants. She explained that if the court granted leave, she would file an amended petition asserting that her supervisors violated her constitutional right to equal protection.
Workman also filed a response to TCEQ's combined motion and attached the three EEOC charges; position statements she provided to EEOC investigators; a right-to-sue letter from the EEOC; a description of her job duties; and a purported whistleblower complaint Workman filed with the Environmental Protection Agency. She followed the entire response with a declaration under Section 132.001 of the Civil Practice and Remedies Code "that the facts as set forth in the foregoing are true and correct."
TCEQ filed a reply arguing, among other things, that the fourth amended petition "was filed to unfairly surprise and prejudice TCEQ and should be struck." TCEQ attached Workman's performance reviews from 2015 onwards; TCEQ policies regarding salary increases, promotions, leave, and expected work hours; emails between Workman and her supervisors, including responses to Workman's initial complaints of discrimination during the performance review conference in 2016; the PIP; a memorandum extending the PIP and assigning her additional tasks; emails between Workman and her supervisor concerning Workman's requests for vacation time and time off to attend professional trainings; and the EEOC charges.
The district court held a remote hearing on December 21, 2022. At the start of the hearing, the district court observed that she had not yet reviewed the pleadings and that the people watching the livestream "know everything that I know." The parties first addressed whether the district court possessed jurisdiction over the section 1983 claim. Counsel for TCEQ argued that it retained sovereign immunity because Section 1983 claims must be brought against individuals. Workman responded that she filed her motion for leave to add her supervisors as defendants to cure this jurisdictional defect. The district court asked counsel for TCEQ whether Workman can "cure by filing this amendment?" Counsel responded that the defect is incurable because Workman would need to assert ultra vires claims against her supervisors, and her fourth amended petition does not assert any claims against them.
The parties then moved to whether TCEQ was entitled to summary judgment. After hearing argument from Workman, the district court asked TCEQ's counsel "Was any of those facts or a portion of those facts presented in a verified way in her response to your MSJ?" Counsel replied that they were not.
At the close of the hearing, the district court orally granted the plea to the jurisdiction in its entirety and the motion for summary judgment on all claims except for a hostile work environment. The district court gave Workman "ten days [] to get a properly verified response on file" as to that claim. Shortly after the hearing, the district court signed an order granting the plea to the jurisdiction and the motion for summary judgment except as to the hostile work environment claim. Workman filed an amended response with the same evidence and another verification under Section 132.001. Following a hearing that was not recorded, the district court signed an order granting the remainder of the motion for summary judgment, creating a final judgment. Workman's motion for new trial was overruled by operation of law, and this appeal ensued.
DISCUSSION
Workman challenges the district court's judgment in four issues, which we have reordered. In her first three issues, Workman argues that the district court erred by granting summary judgment on her claims under the Whistleblower Act and for retaliation under Title VII and by dismissing her ultra vires claims for want of jurisdiction. She argues in her final issue that we should remand in the interest of the justice because of irregularities during the summary-judgment hearing.
Whistleblower Act
Workman first argues that the district court erred by granting summary judgment on her claim under the Whistleblower Act because TCEQ did not move for summary judgment on that claim. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 298 (Tex. 2011) ("[A] trial court errs in granting a summary judgment on a cause of action not expressly presented by written motion."). TCEQ responds that the district court struck the fourth amended petition-the first to include a claim under the Whistleblower Act-for unfair surprise. See Tex. R. Civ. P. 63 (allowing parties to file amended pleadings "at such time as not to operate as a surprise to the opposite party").
Workman argues that TCEQ failed to secure a ruling on its objection. TCEQ responds that the district court impliedly struck the fourth amended petition. We agree with TCEQ. An implicit ruling is "one that, though unspoken, reasonably can be inferred from something else." Trevino v. City of Pearland, 531 S.W.3d 290, 299 (Tex. App.-Houston [14th Dist.] 2017, no pet.). The implication must be "clear" from the record. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). After TCEQ's counsel argued that the court should not consider Workman's fourth amended petition because of "surprise and prejudice," the district court did not refer to any of the claims in the fourth amended petition again. For the remainder of the hearing, the district court discussed only the causes of action asserted in Workman's third amended petition: claims under Section 1983 and Title VII. At the end of the hearing, the district court orally ruled on the plea to the jurisdiction and the motion for summary judgment on Workman's claims under Title VII while not mentioning any of the newly raised claims in the fourth amended petition. In its final order, the district court granted TCEQ's motion for summary judgment "in all things." That motion did not address the claims under the TCHRA and Whistleblower Act in the fourth amended petition. We conclude that by granting summary judgment to TCEQ, the district court impliedly granted its request to strike the fourth amended petition. See Parker v. Barefield, 206 S.W.3d 119, 120-21 (Tex. 2006) (per curiam) (holding trial court effectively denied leave to amend by granting special exceptions and dismissing case); Triex Tex. Holdings, LLC v. Marcus & Millichap Real Estate Inv. Servs. of Nevada, Inc., No. 07-18-00077-CV, 2019 WL 1868793, at *2 (Tex. App.-Amarillo Apr. 25, 2019, no pet.) (mem. op.) (holding trial court impliedly denied leave to amend by granting summary judgment).
We review the district court's decision to strike the petition for an abuse of discretion. Strange v. HRsmart, Inc., 400 S.W.3d 125, 131 (Tex. App.-Dallas 2013, no pet.) (appellate court review ruling on motion to strike pleadings for abuse of discretion). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard for guiding rules or principles, or without supporting evidence. Transcor Astra Group S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 482 (Tex. 2022).
Generally, parties may freely amend their pleadings without leave of court up to seven days before trial. Tex.R.Civ.P. 63. "The amended pleading may not, however, act as a surprise to the other party." Andrews v. John Crane, Inc., 604 S.W.3d 495, 500 (Tex. App.- Houston [14th Dist.] 2020, pet. denied) (citing Tex.R.Civ.P. 63). A trial court may strike an amended pleading if the opposite party objects and "there is evidence of surprise or prejudice or the amendment would be prejudicial on its face." Mosaic Baybrook One, L.P. v. Cessor, 668 S.W.3d 611, 625 (Tex. 2023). An amendment is prejudicial on its face if it asserts a new substantive matter that reshapes the nature of the trial itself; the opposing party could not have anticipated the amendment in light of the development of the case up to the time the amendment was requested; and the opposing party's presentation of its case would be detrimentally affected by the amendment. Lee v. Memorial Prod. Operating, LLC, No. 03-22-00063-CV, 2024 WL 847222, at *2 (Tex. App.-Austin Feb. 29, 2024, no pet.) (mem. op.) (citing Tanglewood Homes Ass'n v. Feldman, 436 S.W.3d 48, 64 (Tex. App.-Houston [14th Dist.] 2014, pet. denied)). To determine if an amendment is prejudicial on its face, we must evaluate it "in the context of the entire case." Id.
We cannot conclude on this record that the district court abused its discretion by striking the fourth amended petition. First, we observe that this was the third time in the preceding year that Workman had filed an amended petition adding or nonsuiting claims seven days before a trial setting. The development of the case up to that time should not have caused TCEQ to anticipate the amendment. Workman stated at a previous hearing that she had nonsuited her claims under the TCHRA because she intended to pursue litigation in federal court. And she never asserted a claim under the Whistleblower Act before the fourth amended petition even though the EPA rejected her complaint two years before she filed her original petition. Viewing the fourth amended petition in context of the entire case, see Lee, 2024 WL 847222, at *2, we conclude the district court would not have abused its discretion by concluding that pleading is prejudicial on its face. We overrule Workman's first issue.
A hearing on a motion for summary judgment is a "trial" for purposes of Rule 63. Goswami v. Metropolitan Savings & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988).
Motion for Leave
Workman argues in her second issue that the district court erred by "preemptively dismissing [her] ultra vires claims against three individual defendants." She bases this argument on the district court's ruling during the December 21 hearing: "The plea to the jurisdiction is granted. You've got no opportunity to cure. Any-any steps you took to cure that would be futile. So I'm dismissing the causes of action under the plea to the jurisdiction." Workman construes this as denying her motion for leave and granting the plea to the jurisdiction as to her purposed ultra vires claims. TCEQ responds that she never asserted an ultra vires cause of action and that the district court dismissed only the Section 1983 claim against TCEQ.
We agree with TCEQ. For a court to dispose of a claim for relief, the claim must be asserted in a pleading or tried by consent. See Tex. R. Civ. P. 67; Deluxe Barber Sch., LLC v. Nwakor, 609 S.W.3d 282, 291 n.4 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) ("A judgment unsupported by pleadings is typically void unless the claims in question were tried by express or implied consent of the parties."). Workman never filed a pleading asserting an ultra vires claim, and nothing in the record shows that the parties thought Workman had asserted ultra vires claims against anyone. See Wood v. Wiggins, 650 S.W.3d 533, 553 (Tex. App.-Houston [1st Dist.] 2021, pet. denied) (explaining trial by consent requires, at minimum, "circumstances indicating both parties understood issue was in case"). Whether or not the district court erred in concluding that granting her motion for leave would be futile, the district court could not-and did not-dismiss ultra vires claims that were not before it. We overrule Workman's second issue.
Retaliation
Workman argues in her third issue that the district court erred in granting TCEQ's hybrid motion for summary judgment on her retaliation claim.
Workman does not challenge the district court's summary judgment on her other claims under Title VII.
"We review summary judgments de novo, viewing the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022). A party moving for traditional summary judgment has the burden to demonstrate that "there is no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Tex.R.Civ.P. 166a(c). In comparison, a properly filed no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion. Id. R. 166a(i). If the nonmovant fails to meet its burden under the no-evidence motion, there is no need to address the challenge to the traditional motion as it necessarily fails. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017).
A genuine issue of material fact exists if the conflict "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. at 220 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Evidence does not create an issue of material fact if it is "so weak as to do no more than create a mere surmise or suspicion" that the fact exists. Id. (citing Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)).
Title VII of the Civil Rights Act prohibits employers from engaging in retaliatory action against an employee for opposing a discriminatory practice. 42 U.S.C. § 2000e-3(a). When a retaliation claim relies on circumstantial evidence, as here, we apply the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under this framework, the plaintiff must first establish a prima facie case of discrimination. Feist v. Louisiana, Dep't of Just., Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013). If the plaintiff establishes a prima facie case, the burden shifts to "the employer to state a legitimate, non-retaliatory reason for its decision." Id. After the employer states its reason, "the burden shifts back to the employee to demonstrate that the employer's reason is actually a pretext for retaliation." Id.
In her response to TCEQ's combined motion, Workman alleged that her supervisors: denied her requests for travel to trainings; denied requests for compensatory time; restricted her interactions with coworkers; denied her a promotion she was previously promised; stopped her from participating in a public presentation that included her work; placed her on the PIP; threatened her with termination; refused to allow her to take advantage of the flexible work hours permitted by TCEQ policy, which resulted in deteriorating health from missed medical appointments; falsely accused her of causing data discrepancies in May and August 2019; extended the PIP; denied her a raise or promotion in September 2019; amended the PIP; and denied her access to software required to perform the new tasks.
She also alleged that her supervisor required her to complete an "unreasonable assignment" within a short time but does not provide any further details.
We assume without deciding that Workman met her burden and turn to the second step. At this stage, "the employer's burden is one of production, not persuasion, and does not involve a credibility assessment." Rodriguez v. City of Poteet, No. 04-13-00274-CV, 2014 WL 769286, at *5 (Tex. App.-San Antonio Feb. 26, 2014, no pet.) (mem. op.) (citing Cothran v. Potter, 398 Fed. App'x. 71, 73 (5th Cir. 2010)). The employer satisfies this burden if it produces "any evidence" that, "taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Daigle v. Liberty Life Ins., 70 F.3d 394, 396 (5th Cir. 1995).
TCEQ presented evidence that many of these alleged employment actions were the result of Workman's performance reviews or her placement on the PIP. For example, to be eligible for a promotion or merit-based salary increase, an employee must receive an overall rating of "meets expectations" with an "exceeds expectations" in at least one area and must not have been placed on a PIP within the preceding six months. The PIP-which she does not dispute signing-expressly restricts her work location, work hours, interactions with coworkers, attendance at professional trainings, and requests for leave. Thus, her allegations reduce to the negative performance reviews, the placement of her on the PIP, and the extension of it.
With respect to these allegations, TCEQ pointed to the poor work performance recorded in her annual reviews beginning in 2015. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (recognizing that "[p]oor work performance is a legitimate, non-discriminatory reason" for adverse employment action). In the 2015 Review, Workman's supervisor rated her as meeting expectations but needing improvement with communication and decision-making. Her supervisor was particularly concerned that staff and managers from other divisions complained that Workman had "communicated programmatic issues and concerns with them" and told Workman to "make immediate improvements to effectively communicate information through her management chair, beginning with her Team leader." The 2016 Review states that Workman's supervisors continued to receive the exact same complaints. Workman showed "some improvements" in the following year, but her emails to her supervisors were often "difficult to understand." The "action plan" attached to the 2017 Review explains in detail the improvements Workman should make in the following year and lays out specific tasks for her to complete.
According to the 2018 Review, the quality of Workman's work significantly declined the following year. Workman did not accomplish any major assignment "without significant supervision," left many tasks incomplete, and "demonstrated an unwillingness to accept advice or follow direction from her supervisors on resolving issues or performing specific tasks." She frequently "did not report to work for her scheduled hours" without notifying her supervisor and worked more than her scheduled hours without preapproval. Workman's supervisor placed her on a PIP to address these deficiencies. According to the memorandum extending the PIP, Workman "had made some progress completing the first three assignments" in the PIP, but her productivity and the quality of her work had not improved.
This undisputed evidence of a legitimate, non-discriminatory reason for the various employment actions is sufficient to shift the burden back to Workman to demonstrate that TCEQ's reason is a pretext for retaliation. To survive TCEQ's no-evidence motion for summary judgment, Workman had the burden to present more than a scintilla of evidence "that the adverse action would not have occurred 'but for' [TCEQ's] retaliatory motive." See Feist, 730 F.3d at 454.
Courts have recognized that the "combination of suspicious timing with other significant evidence of pretext, can be sufficient to survive summary judgment." Shiyan Jiang v. Texas Comm'n on Env't Quality, 321 F.Supp.3d 738, 749 (W.D. Tex. 2018) (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999)). Workman argues that there is a fact issue on pretext because she never received negative feedback on her job performance prior to engaging in protected activity and because certain of TCEQ's "illegitimate reactions to the alleged sudden decline in her work performance" support that its true purpose was to force her to resign. TCEQ responds that Workman had received essentially the same negative feedback before she first engaged in protected activity.
We agree with TCEQ. The record reflects that the annual performance review for 2015 occurred before Workman began engaging in protected activity. While Workman is correct that she received an overall rating of meets expectations, her supervisor noted concerns regarding decision-making and communication that are essentially the same as those in the reviews after she began engaging in protected activity. Each of the reviews that followed describes in detail how Workman fell short of expectations and what steps she must take to ameliorate those concerns. And the "illegitimate reactions" Workman cites as supporting an inference of discriminatory animus-denying requests for vacation and to attend professional trainings, restricting her from communicating with her coworkers, not giving her pay increases or promotion-are either in direct response to the concerns noted in the review or are consequences of her placement on the PIP. Viewing the evidence in the light most favorable to Workman, we conclude that the record raises no more than a surmise or suspicion that TCEQ's stated reasons were pretextual. We overrule Workman's third issue.
Workman argues that her experience "closely resembles" that of her coworker, the plaintiff in Jiang. The federal district court in that case denied TCEQ's motion for summary judgment in part because "there is the lack of evidence that Jiang was formally disciplined in his more than 20 years at TCEQ before he filed his discrimination complaint in August 2015." 321 F.Supp.3d at 750. Here, in contrast, Workman's supervisor raised the same concerns about her work performance before she engaged in any protected activity.
Remand
In her fourth issue, Workman asks us to remand this case in the interest of justice because of certain irregularities in the December 21, 2022 summary-judgment hearing. Specifically, she argues that the district court ruled against her "without reviewing a word of the motion or response, simply because the court accepted TCEQ's characterization of its own evidence and was misled into believing this evidence was unrebutted." TCEQ responds that Workman's "quibbles with minutiae of the trial court proceedings" are "red herrings" that do not justify remand.
That is, based on her statements at the hearing, the district judge appeared to accept counsel's statement that Workman failed to present any verified facts. The statutorily-required jurat in the declaration was incomplete because it did not include her birthday. See Tex. Civ. Prac. & Rem. Code § 132.001; Hays St. Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d 697, 702 & n.15 (Tex. 2019) (concluding declaration "provides no support" for motion because jurat lacked affiant's date of birth). TCEQ, however, did not object to the declaration on this basis. See ACI Design Build Contractors Inc. v. Loadholt, 605 S.W.3d 515, 518 (Tex. App.-Austin 2020, pet. denied) (concluding that lack of jurat in Section 132.001 declaration is waived by failure to object).
Although we do not share TCEQ's characterization of the proceedings in the district court, we agree that remand is not appropriate. The courts of appeals have "broad discretion to remand for a new trial in the interest of justice when there is a probability that a case has not been fully developed for any reason." In re Z.R.M., 665 S.W.3d 825, 829 n.6 (Tex. App.-San Antonio 2023, pet. denied). But we may not exercise that authority "without first reversing the trial court's judgment." Union Pac. R.R. v. Seber, 477 S.W.3d 424, 435 (Tex. App.-Houston [14th Dist.] 2015, no pet.); see Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (explaining that only supreme court may overturn "errorless judgment[] of the trial court"). Workman has not cited, and we have not found, authority that would allow this Court to remand the case for a new trial in the interest of justice when we are not reversing the district court's judgment but affirming its order granting TCEQ's motion for summary judgment and plea to the jurisdiction. We overrule Workman's fourth issue.
CONCLUSION
We affirm the district court's judgment.
Affirmed.