Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, November 3, 2011

WBA: Good-faith report to what whistleblower believed to be appropriate law-enforcement agency or regulator

     
TEXAS WHISTLEBLOWER ACT: WHAT IS PROTECTED?
  
The Texas Whistleblower Act is contained in chapter 554 of the Texas Government Code. See Tex. Gov't Code Ann. §§ 554.001-.010. Section 554.002 of the Whistleblower Act provides
 
(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. 
 
(b) In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:
 
(1) regulate under or enforce the law alleged to be violated in the report; or         

(2) investigate or prosecute a violation of criminal law. 

Id. § 554.002.


Pursuant to section 554.0035 of the act, “[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.” Id. § 554.0035.        
   
Under section 554.002, a conclusion that a governmental entity to whom a report is made is not authorized to regulate under, enforce, investigate, or prosecute the law at issue is not determinative as to whether a whistleblower action can be maintained. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002).
 
A party may obtain Whistleblower Act protection if he in good faith believed such governmental entity was an appropriate law enforcement authority as the statute defines the term. Id. In the context of section 554.002(b), “good faith” means (1) the employee believed the governmental entity was authorized to regulate under or enforce the law alleged to be violated in the report, or investigate or prosecute a violation of criminal law; and (2) the employee's belief was reasonable in light of the employee's training and experience. Id. at 321.
  
SOURCE: DALLAS COURT OF APPEALS - 05-11-00480-CV  - 11/3/11 


        In its sole issue on appeal, Dallas County asserts the trial court erred by denying its plea to the jurisdiction. In its brief before this Court, Dallas County argues (1) “Logan's claims were barred by governmental/sovereign immunity,”  See Footnote 4  (2) the trial court lacked jurisdiction over Logan's “incurably invalid Texas Whistleblower Act suit,” (3) Logan's pleadings affirmatively negated the existence of jurisdiction, (4) evidence established Logan did not have a subjective good faith belief that he was making a report to an appropriate law enforcement authority, (5) the Dallas County Commissioners Court and Dallas County Judge “were not public employees,” and (6) evidence established Logan did not have an objective good faith belief that he was making a report to an appropriate law enforcement authority when he “allegedly made allegations to the Dallas County Commissioners Court, Dallas County Judge and the Danny Defenbaugh investigators, including Kenneth Lybrand.”
        Logan contends this Court should not consider arguments respecting his “good faith belief” because such issues were “not preserved for appeal.” Further, Logan argues the investigators and the Dallas County Judge “were clearly all part of a local governmental entity.”
        Because our jurisdiction in this interlocutory appeal is limited, we confine our review to the ruling on the plea to the jurisdiction that was actually filed and do not address whether the district court erred in denying the plea on a ground that was not argued below. See Estate of Arancibia, 244 S.W.3d at 461-62; First Trade Union Sav. Bank, 133 S.W.3d at 687. As described above, the record shows that in the trial court, Dallas County contended (1) the investigators to whom Logan made his reports were not part of a state or local governmental entity or of the federal government and (2) the investigators and the Dallas County Judge were not appropriate law enforcement authorities because they could not regulate or enforce the laws that Logan alleged had been violated or investigate or prosecute a violation of criminal law, as required by the Whistleblower Act in section 554.002(b). The record shows no other jurisdictional challenges were asserted by Dallas County in the trial court.         First, we consider Dallas County's contention that section 554.002(b) is inapplicable because the investigators hired by the Dallas County Commissioners Court were not “part of a state or local governmental entity or of the federal government.” See Tex. Gov't Code Ann. § 554.002(b). The parties do not dispute that Dallas County is a state or local governmental entity. Further, Logan's whistleblower claims are based not only on reports he made to the investigators, but also on reports made by him to the Dallas County Judge. Dallas County does not contend, and the record does not show, that the Dallas County Judge is not part of a state or local governmental entity or the federal government. Therefore, even assuming, without deciding, that Dallas County is correct that the investigators hired by the Dallas County Commissioners Court were not “part of a state or local governmental entity or of the federal government,” we cannot agree section 554.002(b) is inapplicable in this case. See id.
        Second, we address Dallas County's contention that the investigators and the Dallas County Judge were not appropriate law enforcement authorities because they could not regulate or enforce the laws that Logan alleged had been violated or investigate or prosecute a violation of criminal law. Logan may obtain Whistleblower Act protection if he in good faith believed that either of the two authorities to whom he made reports was an appropriate law enforcement authority as the statute defines the term. See Needham, 82 S.W.3d at 320.Because the record shows Dallas County did not challenge Logan's objective or subjective good faith belief respecting an “appropriate law enforcement authority” in the trial court, we do not review on appeal any claim by Dallas County that Logan lacked such good faith belief. See Estate of Arancibia, 244 S.W.3d at 462;First Trade Union Sav. Bank, 133 S.W.3d at 687. Accordingly, even assuming without deciding that Dallas County is correct that neither the investigators nor the Dallas County Judge could regulate or enforce the laws that Logan alleged had been violated or investigate or prosecute a violation of criminal law, such conclusion would not demonstrate a failure by Logan to allege facts that affirmatively demonstrate the trial court's jurisdiction. See Miranda, 133 S.W.3d at 226.

        We decide against Dallas County on its sole issue. The trial court's order is affirmed. 

SOURCE: DALLAS COURT OF APPEALS - 05-11-00480-CV  - 11/3/11 


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