Austin Court of Appeals holds supervisor without law-enforcement powers can still qualify as appropriate law enforcement authority for Whistleblower Act purposes

Rebekha Montie v. Bastrop County,03-16-00123(Tex. App— Austin, October 19, 2016)

This is a Texas Whistleblower Act case where the Austin Court of Appeals reversed the granting of the County’s plea to the jurisdiction and remanded the case for trial.

Rebekha Montie was terminated from her job as a manager for an animal shelter in Bastrop County.  She alleged she was fired after she reported her supervisor, Diane Mollaghan, was guilty of cruelty to animals. Specifically, Montie urged that Mollaghan failed to timely euthanize shelter animals that were injured or ill and failed to maintain the animals at the shelter by not providing them with adequate water and food in violation of Tex. Penal Code §42.092 (prohibiting cruelty to non-livestock animals). The County filed a plea to the jurisdiction. After a trip up and back from the Court of Appeals, the Austin Court of Appeals ordered Montie have the opportunity to replead to demonstrate jurisdiction. After her amended pleading the County filed an amended plea, which the trial court granted. Montie appealed.

Montie first asserts the trial court should have stricken the affidavit of Littleton who is the Chief Deputy of the Bastrop County Sheriff’s Office. The court analyzed the argument but ultimately assumed the affidavit was considered since its presence or absence does not change the ultimate answer to the jurisdictional question.

The court then held Montie properly pled violations of the law as the factual allegations of cruelty to animals, if proven true, would violate Penal Code §42.092. Next, the evidence and pleadings established Montie complained to Mollaghan, who was a department head.  Essentially, Montie complained to Mollaghan about Mollaghan.  According to the court “[t]he supreme court has explained that the employee to whom a report is made must work for an entity with ‘outward-looking law-enforcement authority[]’” and simply because an individual is a supervisor does not mean they cannot also be an appropriate law enforcement authority. Montie has alleged that “she made the report to Mollaghan, that Mollaghan was the director for the animal shelter, and that Mollaghan was the supervisor for animal-control officers who investigate violations of and enforce the animal-cruelty laws that Montie contends were violated. Although Bastrop County asserts Montie’s own allegations establish that Mollaghan would have had to pass the complaint to one of her subordinate animal-control officers for investigative purposes and for possible citations, the hypothetical examples presented by the supreme court indicate that a report to an employee who does not have law-enforcement powers but works for an entity with outward-looking enforcement powers can qualify for protection.”  At the plea stage, based on the allegations in the petition, Montie properly asserted her supervisor was an appropriate law enforcement authority. As a result, the plea should not have been granted.

If you would like to read this opinion click here. The Panel includes Justice Puryear, Justice Pemberton and Justice Field. Justice Puryear delivered the opinion of the court. Attorney listed for Montie is Mr. Eric B. Storm. Attorney listed for the County is Mr. Charles S. Frigerio.

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