Texas Supreme Court holds state senator is not an appropriate law enforcement authority under Whistleblower Act and neither is the director of state agency
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY v. ROSAENA RESENDEZ, 13-0094 (Tex. November 21, 2014)(Per Curiam.)
This is a Texas Whistleblower case where an employee of the Texas Commission on Environmental Quality (“TCEQ”) allegedly reported illegal activity to her supervisors and to the office of a state senator.
Resendez was assigned to investigate the disappearance of a vehicle purchased with state incentivized funds (“TERP” funds) for low emissions. The owner of the vehicle had been deported to Mexico. She advised her supervisor, Dayton, that TERP funds were being given to illegal immigrants. Dayton stated he was aware that sometimes happens but appeared reluctant to address it. She presented the concern to another supervisor, Dalton, who allegedly told her to “drop it.” Soon afterwards Resendez received negative reviews and was placed on probation. Resendez claims that just prior to her ultimate termination, she met with the TCEQ director, Brymer but he was unreceptive. She then took her concerns to Senator Juan “Chuy” Hinojosa’s office. Days later, she was terminated. She filed suit and the TCEQ filed a plea to the jurisdiction which the trial court granted but the court of appeals reversed.
The Texas Supreme Court began by reaffirming it’s holding in Texas Department of Human Services v. Okoli that internal reports to supervisors are insufficient to trigger Whistleblower protection, even if the supervisor has a duty to forward the information to law enforcement. The court noted that Texas Government Code §321 criminalizes the failure of a state agency’s “administrative head” to report fraud or misappropriation of funds if there is reasonable cause to believe that such has taken place. Tex. Gov’t Code §§ 321.019, 321.022(a). However, none of the supervisors or even the director had the authority to enforce the fraud-reporting requirement, other than to take employment disciplinary action internally. Additionally, Senator Hinojosa is not a law-enforcement authority and any belief he was is not objectively reasonable. He is a legislator, not part of the administrative branch. His duty is to create law, not enforce it. And while Senator Hinojosa had the ability to investigate state agencies, investigative power alone is not enough. His powers remain legislative, not prosecutorial. [Comment: similar reasoning could apply to city council members.] As a result, the trial court’s order granting the plea is affirmed.