AG’s policy obligating division head to report crimes to Special Investigation Division makes them “appropriate law enforcement authorities” under Whistleblower Act

Office of The Attorney General v. Ginger Weatherspoon, 05-13-00632-CV (Tex. App. – Dallas, June 16, 2014).

This is a Texas Whistleblower Act case in which the trial court denied the plea to the jurisdiction filed by the Texas Attorney General (“AG”) and the Dallas Court of Appeals affirmed.

Weatherspoon was an assistant AG in the Child Support Division. The AG’s office allegedly ordered Weatherspoon to sign an affidavit detailing a conversation she had with a district judge as the AG wanted to use the affidavit to have the judge recused. She refused stating it mischaracterized the conversation, tone, and various facts. She offered to revise it but was ordered not to. Weatherspoon reported the pressure to sign the affidavit to her division head. She asserted her supervisor was violating the Texas Penal Code under abuse of official capacity and official oppression by trying to force her to sign a false affidavit. The AG’s office has a written policy stating all potential criminal violations are to be reported to the division head who then was obligated to refer them to the Special Investigations Division of the AG and under no circumstances shall a report be made to an outside law enforcement authority. After her report in compliance with the policy, she was terminated. After exhausting her administrative remedies she filed suit. The AG filed a plea to the jurisdiction which the trial court denied.

The AG argued Weatherspoon failed to make a report to an appropriate law enforcement authority under the Whistleblower Act. The court held that while normally compliance with internal complaints is not sufficient, it is a different story if the entity also has the power to enforce, investigate, or prosecute violations of the law allegedly being reported. And while Weatherspoon only reported the incident to her division head in Child Support (which does not investigate official oppression or abuse of office), the division is part of the AG’s office. The AG office, through its Office of Special Investigations, has the authority to investigate not only internal fraud and corruption but also fraud and corruption of third parties. Furthermore, the AG has concurrent jurisdiction to prosecute abuses of official capacity and official oppression by third parties. Pursuant to the AG’s own policies and procedures, Weatherspoon’s division head was required to refer the report to the AG’s Office of Special Investigations. The court focused on the AG’s policies noting the policy required Weatherspoon to report to her division head (which she did) and the division head had an obligation to provide the report to the SI division. While normally reporting to a supervisor believing the supervisor will forward to an appropriate law enforcement agency is insufficient, the AG’s office policy created a situation making the supervisor the appropriate person to whom reports of such criminal acts must be made.   As a result, the trial court properly denied the AG’s plea.

If you would like to read this opinion click here. Panel: Justice O’Neill, Justice Lang-Miers and Justice Evans. Opinion by Justice Evans. The attorneys listed for Weatherspoon are Carla S. Hatcher and Steven B. Thorpe. The attorneys listed for the AG are Amanda Cochran-McCall, James B. Eccles, Shelley Alisa Dahlberg, Daniel T. Hodge, Greg Abbott, William T. Deane and David C. Mattax.