District judge not an “appropriate law enforcement authority” under Whistleblower Act says Austin Court of Appeals
Hunt County Community Supervision and Corrections Department v. Christina Gaston, 03-13-00189-CV (Tex. App. – Austin, August 6, 2014).
This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Whistleblower Act lawsuit. A majority panel of the Third Court of Appeals in Austin reversed the denial. Chief Justice Jones dissented.
Warning: this is a long summary simply due to the factual history and analysis which could not be condensed any further. However, the case is helpful to anyone who deals with Whistleblower Act violations.
Gaston worked for Hunt County Community Supervision and Corrections Department (“HCCSCD”) as a probation officer of sorts. Her job duties required her to assist trial courts with probation related matters. Community supervision and corrections departments (“CSCDs”) like the HCCSCD serve the district courts and county courts at law handling criminal cases within judicial districts, including probation. Oversight of a CSCD is a committee on which sits the presiding judge of the district, however the legislature has specifically stated CSCDs are distinct entities unto themselves and employees of the CSCDs are not employees of the County, district or judge. The committee appoints a director who possesses sole direct authority over employment issues, in this case McKenzie. In 2011 a new presiding judge — —the Hon. Stephen Tittle–assumed the role on the committee for HCCSCD. Judge Tittle and Gaston had formed a personal friendship during Tittle’s earlier years as a prosecutor. Gaston was later found to have represented an ability to influence Judge Tittle’s decisions due to her friendship and threatened a defense attorney who had angered her with a blacklisting from court appointments. When McKinzie discovered the threats after an internal investigation, he terminated Gaston. Gaston asserts she was terminated for reporting to Judge Tittle the director and other HCCSCD personnel had violated various laws in their administration of the program. Judge Tittle asserted that he discovered certain local nonprofit contract agencies such as the local food bank had accepted money from probationers in exchange for reduced community hours. Judge Tittle informed McKinzie (the same day McKinzie advised Judge about the results of internal investigation of Gason) of his concerns this violated the law. However in a Texas Attorney General Opinion (GA-0593 (2008), the AG noted an exception existed if donations are made to food banks/pantries. Gaston sued under the Texas Whistleblower Act. HCCSCD filed a plea to the jurisdiction which the trial court denied and it appealed.
The majority court first stated with numerous references that the analysis must start with the assumption that immunity bars Gason’s. The court then analyzed whether Judge Tittle was an “appropriate law enforcement authority” under the Act. It started the analysis by emphasizing the Act states that the person receiving the report of illegal conduct must be part of a qualifying “entity.” In short, Gason must have a good faith belief the 196th District Court is empowered to “regulate under or enforce” cited criminal provisions or to “investigate or prosecute” criminal offenses as those terms are used in the Whistleblower Act. Gason’s live pleadings allege no facts to support such a good faith belief, only “a bare conclusion parroting” of the Act but one which focused on the Judge being the entity, not the district court. Given that Judge Tittle had oversight power over McKinzie due to his committee position, reporting to Judge Tittle is the same as reporting to a supervisor. However, the court was still required to analyze whether the 196th was an appropriate entity to make such a report. Citing prior cases and distinguishing others, the court held “appropriate law enforcement authority” denotes “an investigative or executive function” that “[t]he judicial branch does not perform.” The court also went into a separation of powers argument as to why a court cannot perform such executive actions. Gaston argued under chapter 52 of the Code of Criminal Procedure a district court may appoint a Court of Inquiry to investigate criminal activity. However, the evidence and pleadings to not indicate a subjective belief on Gaston’s part her report was meant to trigger a court of inquiry. Further, chapter 52 is not the sort of “free-standing regulatory, enforcement, or crime-fighting authority” that has been held to characterize an “appropriate law enforcement authority.” Therefore the plea should have been granted. Finally, the majority held the defects are incurable so no remand is appropriate.
The dissent began by examining chapter 52 and that evidence existed demonstrating Gaston had an honest belief Judge Tittle was the appropriate person to provide a report. It is also objectively reasonable to believe a district judge has authority to investigate allegations of criminal misconduct under chapter 52. Further, judges often have administrative functions which could qualify them as appropriate law enforcement authorities. The dissent went through its analysis for each opinion, but this summary is already long enough.
If you would like to read this opinion click here. Panel: Justice Puryear, Justice Henson, and Justice Goodwin. Opinion by Justice Pemberton. Dissent by Chief Justice Jones found here. The attorney for the County is listed as Eric L. Vinson. The attorneys listed for Gaston are Colin Walsh, Robert J. Wiley, Stacey Cho.