Texas State University and Texas State University System v. Stuart Patrick Wilkinson — Concurring and Dissenting Opinion by Justice Farris

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Majority and Dissenting Opinions 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
CONCURRING AND DISSENTING OPINION
The majority is correct to reverse the trial court’s order. However, I would
render 	judgment 	dismissing 	Wilkinson’s 	Whistleblower 	Act 	claim 	without
prejudice.
The Texas Supreme Court has held that when a plaintiff’s pleadings are
insufficient to establish jurisdiction, “a plaintiff deserves ‘a reasonable opportunity
to amend’ unless the pleadings affirmatively negate the existence of jurisdiction.”

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Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (citing Harris
County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004); and Cnty. of Cameron v. Brown,
80 S.W.3d 549, 555 (Tex. 2002)).
Here, as the majority properly concludes, Wilkinson failed to plead facts that
would show he met two of the Whistleblower Act’s preconditions: a timely filed
internal grievance and a timely filed lawsuit. Wilkinson’s claim should thus be
dismissed. But because Wilkinson’s pleadings do not affirmatively demonstrate
incurable defects for his Whistleblower Act claim, “the issue is one of pleading
sufficiency.” Miranda, 133 S.W.3d at 226. He therefore should be afforded the
opportunity to amend. Id. at 227.
Importantly, Wilkinson amended his pleadings before the trial court ruled on
Defendants’ plea to the jurisdiction and the trial court later found that Wilkinson’s
amended pleadings were sufficient. Because Wilkinson’s amended pleadings
could not take into account a court’s ruling that his pleadings are
insufficient, which we decide here for the first time, he deserves the opportunity to
amend his pleadings if the defects can be cured. Koseoglu, 233 S.W.3d at 839–40.
As the majority recognizes, ante at 9, Wilkinson’s pleading defects can be cured if
he provides “dates showing when the alleged retaliation occurred, when he filed a
grievance, and whether any grievance is still pending or when it was concluded”—
assuming that those dates help him.
Under the majority’s reasoning, Defendants’ mere filing of a plea to the
jurisdiction should have put Wilkinson on notice that his pleading would need to be
amended to include the dates mentioned above. I agree with the majority that such
dates are either within Wilkinson’s personal knowledge or are matters of record he
could have discovered with reasonable diligence. Although Wilkinson could have

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provided those dates in the first instance, his adversary’s filing of a plea to the
jurisdiction was not adequate to put him on notice of this defect as a matter of law.
If we hold that a Defendants’ plea to the jurisdiction provides the required
“reasonable 	opportunity 	to 	amend,” 	such 	a 	rule, 	“would 	essentially 	allow
governmental entities the unjust advantage of being not only a litigant, but also the
judge of the plaintiff’s pleadings.” Koseoglu, 233 S.W.3d at 839–40. The Texas
Supreme Court has expressly rejected such a rule. Id. So have our sister courts that
have followed Koseoglu. See Bell Cnty. v. Kozeny, 2014 WL 4792656, at *3 (Tex.
App.—Waco Sept. 25, 2014, no pet.) (noting that the Koseoglu court “rejected the
proposed rule that the plaintiff's opportunity to amend arises when the governmental
entity files its plea”); Leonard v. City of Burkburnett, 2023 WL 8940816, at *17
(Tex. App.—Fort Worth Dec. 28, 2023, no pet.) (same).
The majority cites Koseoglu to dismiss with prejudice, recognizing that the
Texas Supreme Court dismissed the plaintiff’s claims with prejudice in that case.
Koseoglu, 233 S.W.3d at 840. But the Koseoglu court did so because it found that
the plaintiff’s pleading defects could not be cured. Remanding that case “would
serve no legitimate purpose” because there were no additional facts the plaintiff
could plead that would overcome the defendant’s immunity from suit. Id. Here, the
same might be said of Wilkinson’s constitutional claims, but that is not the case for
his Whistleblower Act claim.
For the Whistleblower Act claim, Wilkinson could plead facts that would
overcome the government’s immunity and give the trial court jurisdiction over the
suit—namely, the dates mentioned above. Depending on what they are, those dates
may ultimately fail to save Wilkinson’s pleadings. And the majority is correct to
observe that “bouncing cases back and forth between courts for a plaintiff to try
again and again wastes public money and judicial resources.” Ante at 10. But at the

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end of the day, a justice must be concerned first and foremost with the administration
of justice. That is why Koseoglu requires that a plaintiff be given a reasonable
opportunity 	to 	amend—even 	when 	such 	amendment 	creates 	costs 	and
inefficiencies—and forbids allowing a government entity to be both a litigant and
judge of the plaintiff’s pleading adequacy. Applying that precedent here, Koseoglu
requires 	that 	we 	dismiss 	his 	Whistleblower 	Act 	claim 	without 	prejudice.
Accordingly, I respectfully dissent.
/s/ April Farris
April Farris
Justice