putting the pieces together: the texas whistleblower act’s ... · pdf fileputting the...

Putting the Pieces Together:Putting the Pieces Together:

The Texas Whistleblower ActThe Texas Whistleblower Act’’s s Jurisdictional PuzzleJurisdictional Puzzle

Presented by:Presented by:Carlos G. Lopez, ShareholderCarlos G. Lopez, ShareholderDawn Dawn KahleKahle Doherty, ShareholderDoherty, Shareholder

Sovereign Immunity

The State, state agencies, local governmental entities, and political subdivisions are immune from suit and liability unless such immunity is expressly abrogated by the Legislature.

Texas Whistleblower Act

The Texas Legislature has statutorily protected governmental employees from adverse personnel actions related to certain whistleblowing.


TEX. GOV’T CODE §554.002(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.”


TEX. GOV’T CODE §554.035 Waiver of Immunity

“A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.”

State v. Lueck (Tex. 2009)

Whether the elements of section 554.002(a) constitute jurisdictional facts that can implicate the court’s subject matter jurisdiction.


There are two jurisdictional requirements under section 554.035. The plaintiff must:

(1) be a public employee, and

(2) allege a violation of Chapter 554 of the Texas Government Code


The elements of section 554.002(a) can be considered to determine both jurisdiction and liability.


To establish a trial court’s subject matter jurisdiction, a plaintiff must show that:

(1) He made a good faith report of a violation of law; and

(2) The report was made to an appropriate law enforcement authority.

Violation of Law

(1) “Law” means:

(A) a state or federal statute;

(B) an ordinance of a local governmental entity; or

(C) a rule adopted under a statute or ordinance.

TEX. GOV’T CODE §554.001(1)


Did Not Report Violation of Law

• Previous (known) regulatory non-compliance

• Potential future regulatory non-compliance

• Internal policy recommendation

Appropriate Law Enforcement Authority

TEX. GOV’T CODE §554.002(b)

…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.


Report Not to Appropriate Authority

• Supervisor and head of division in TXDOT is not appropriate authority for federal regulatory noncompliance

• Plaintiff’s statement that his supervisor should have the report in his hands when speaking to other Divisions within TXDOT negated jurisdiction

Key Post-Lueck Whistleblower Cases

• Galveston Indep. Sch. Dist. v. Jaco, 331 S.W.3d 182 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)

• Univ. of Houston v. Barth, 2011 Tex. App. LEXIS 6866 (Tex. App.— Houston [1st Dist.]) Aug. 25, 2011)

• Tex. Dep’t of Transp. v. Garcia, 2010 Tex. App. LEXIS 4779 (Tex. App.— Corpus Christi, June 24, 2010, no pet.)

• Tex. Dep’t of Human Servs. v. Okoli, 317 S.W.3d 800 (Tex. App. Houston [1st Dist.] 2010, pet. filed)

• Univ. of Tex. Southwestern Med. Ctr. v. Gentilello, 317 S.W.3d 865 (Tex. App.—Dallas 2010, pet. filed)

Key Post-Lueck Whistleblower Cases

• City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010)

• Univ. of Tex. San Antonio v. Wells, 2011 Tex. App. LEXIS 920 (Tex. App.—San Antonio Feb. 9, 2011 no pet.)

• Tex. Water Dev. Bd. v. Neal, 2010 Tex. App. LEXIS 3225 (Tex. App.— Austin Apr. 28, 2010, pet. denied)

• Moreno v. Tex. A&M University-Kingsville, 339 S.W.3d 902 (Tex. App.— Corpus Christi May 5, 2011, pet. filed)

• DART v. Carr, 309 S.W.3d 174 (Tex. App.—Dallas, pet. denied)

Is There a Violation of Law?

• State or federal statute

• Local government ordinance

• Rule adopted pursuant to statute or ordinance

Violation of Law

DART v. Carr (Tex. App.—Dallas 2010)

• A plaintiff is not required to identify a specific law when making the report

• A plaintiff does not have to establish an actual violation of law

• However, there must be some law prohibiting the complained of conduct to state a Whistleblower Act claim. Otherwise “any complaint, grievance or misconduct could support a claim.”

Violation of Law

A report regarding an officer’s alleged dereliction of duty is not a report of a violation of law for purposes of the Whistleblower Act.

Violation of Law

Galveston Indep. Sch. Dist. v. Jaco(Tex. App.—Houston [14th Dist.] 2011)

• UIL rules are not rules “adopted under a statute or ordinance.”

• Strict and narrow construction of “law” and the definition of “law” in Whistleblower Act.

Violation of Law

City of Elsa v. Gonzalez(Tex. 2010)

• A report of a violation of law must be in “good faith”

Plaintiff must believe that he was reporting conduct that constituted a violation of law

Belief must be reasonable based on the plaintiff’s training and experience

Violation of Law

City of Elsa v. Gonzalez(Tex. 2010)

At most, the plaintiff’s report related to a potential future violation. Therefore, the plaintiff did not make a good-faith report of an existing or past violation of law.


To whom did the plaintiff blow the whistle?

Does the entity:

• Regulate under or enforce the law alleged to have been violated

•Investigate or prosecute a violation of criminallaw

Was the Report Made to an Appropriate Law Enforcement Authority?

Appropriate Law Enforcement AuthorityCity of Elsa v. Gonzalez(Tex. 2010)

City council not an appropriate law enforcement authority for purposes of the Texas Open Meetings Act.


• The requirement that the city council comply with the Open Meetings Act does not show that the council could “regulate under or enforce” the Act.

• The plaintiff’s belief that the city council could postpone the meeting or prevent a violation of the Open Meetings Act is no evidence that he held a good faith belief that the council was an appropriate law enforcement authority.


“[T]he Whistleblower Act’s limited definition of a law enforcement authority does not include an entity whose power is not shown to extend beyond its ability to comply with a law by acting or refusing to act or by preventing a violation of law by acting or refusing to act.”

Appropriate Law Enforcement AuthorityTex. Water Dev. Bd. v. Neal(Tex. App.—Austin 2010)

Plaintiff’s reports to her employer, the Texas Water Development Board, regarding alleged violations of the Texas Labor Code were not made to an appropriate law enforcement authority.


• The Legislature specifically charged the Texas Workforce Commission with the authority to regulate under, enforce, or investigate complaints alleging violations of Chapter 21.

• The Water Development Board did not have authority to investigate or prosecute violations of the Labor Code or criminal law.

• The Board was only required to comply with the Labor Code.

Appropriate Law Enforcement AuthorityGood Faith Belief

• The plaintiff was an experienced human resources manager.

• The plaintiff contacted the Texas Workforce Commission to confirm her understanding of the Labor Code provisions to determine the accuracy of her allegations before making reports.

• Therefore, the Court held that any alleged good faith belief held by the plaintiff was not reasonable.

Appropriate Law Enforcement AuthorityUniversity of Texas San Antonio v. Wells(Tex. App.—San Antonio 2011)

• The focus is on the entity itself, not the specific department or office that received the report.

• University is objectively not an appropriate law enforcement authority for a plaintiff’s complaints of criminal fraud.


The Court held that the following was no evidence that the plaintiff held a good faith belief that the University was an appropriate law enforcement authority:

• Plaintiff was told that her claims would be investigated;

• Plaintiff was assured that she would be protected under the Whistleblower Act;

• The University had specific policies, directives, and training that the plaintiff followed regarding such reports.

Appropriate Law Enforcement AuthorityTex. Dep’t of Health & Human Servs. v. Okoli(Tex. App.—Houston [1st Dist.] 2010)

• TDHS was charged by the Legislature with the authority to regulate under of enforce the Texas Human Resources Code.

• The plaintiff alleged a violation of Section 12.002.

• The TDHS admitted that its Office of Investigation investigates the very law that the plaintiff reported had been violated.


TDHS’s policies and procedures that required an employee to report misconduct to his supervisors and up the chain of command is evidence that the plaintiff’s supervisors were appropriate lawenforcement authorities.

Appropriate Law Enforcement AuthorityUniv. of Tex. Southwestern Med. Ctr. v. Gentilello(Tex. App.—Dallas 2010)

“The fact that an employee makes a report of a violation of law to his employer or superior regarding the work being performed by the government entity that employs him does not automatically render the Whistleblower Act inapplicable.”


• The federal statutes at issue specifically charge UT Southwestern and its physicians with implementing the laws at the hospital level.

• UT Southwestern had created a formal billing compliance program to ensure it followed Medicare and Medicaid rules and regulations.

• The program specifically stated that the Clinical Department Chair had the responsibility to ensure the goals of billing compliance were met.


• Plaintiff made the report to the Clinical Department Chair who had the authority, responsibility, and ability to ensure UT Southwestern complied with the applicable Medicare and Medicaid rules and regulations.

• UT Southwestern’s billing compliance plan specifically stated that all reports would be forwarded to the Billing Compliance office and employees who made such reports would be protected from retaliation or harassment as established by law.

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