December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.

 

  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.

 

  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.

 

  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.

 

  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.

 

  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.

 

 

  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.

 

  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.

 

  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

Order granted County’s plea to the jurisdiction reversed by 13th Court of Appeals in Whistleblower Act case

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Leticia Perez v. Cameron County and Juan A. Gonzalez 13-17-00581-CV (Tex. App. – Corpus Christi & Edinburg, November 15, 2018).

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

Perez worked as a deputy clerk in the Cameron County Clerk’s Office (“CCCO”). Perez asserts she had witnessed the elected clerk, Rivera, give kickbacks to CCCO vendors. She reported her concerns to the district attorney’s office and the FBI. Later, CCCO was audited for the problems which were the subject of Perez’s report to the district attorney and the FBI. Rivera allegedly “began a campaign of retaliation” against Perez which she believed was due to the report and her refusal to support Rivera’s successor. Perez filed a grievance against Rivera, who later terminated her. Perez filed a whistleblower claim against the County, alleging that she was wrongfully fired after she reported illegal activity by the county clerk. She also brought suit for negligence against the county assistant attorney who advised her to file a grievance.  The County filed a plea to the jurisdiction, which was granted. Perez appealed.

First, Perez did not file a grievance after her termination, but the County’s grievance procedure was applicable only to active employees, not former employees. Many courts have held that when the government has no grievance procedure or a grievance procedure that does not clearly apply to terminated employees, the procedure is not part of the required exhaustion of administrative remedies. The court held a terminated employee should not be obligated to follow a grievance procedure which does not exist or, as is the case here, a grievance procedure which does not apply to terminated employees. Perez’s second point of error essentially stated that she properly plead a good faith reporting. In her petition, Perez claimed that she observed Rivera engaging in potentially illegal activity by awarding “improper and illegal contracts” to CCCO’s vendors. She elaborated in her affidavit that she reported in good faith that Rivera exploited his post as county clerk to engage in “kickbacks and contract rigging.”  Such meets the required elements for bribery and abuse of official capacity, which are both penal provisions. The court held Perez sufficiently alleged a good faith report of a violation of the law. Finally, Perez argued that the trial court accidentally dismissed her claims against Gonzalez (the attorney) as part of its ruling on the County’s plea to the jurisdiction. After granting the plea as to the County, the order then provided, “all requested relief not be granted herein is hereby expressly DENIED.” However, this unambiguous language does not finally dispose of Perez’s claims against Gonzalez. Because the order did not expressly dispose of Perez’s claims against Gonzalez or include a clear and unequivocal finality phrase, it did not dismiss those claims.

If you would like to read this opinion click here. Panel consists of Chief Justice Rodriguez, Justice Contreras and Justice Benavides. The attorney listed for the County is Juan A. Gonzalez. The attorney listed for Perez is Javier Pena.

 

El Paso Court of Appeals holds limitations defense in Whistleblower Act case could not be raised in a plea to the jurisdiction

Sims v. City of Madisonville, 08-15-00113-CV, 2018 WL 4659572, at *1 (Tex. App.—El Paso Sept. 28, 2018, no pet. h.)

This case involves a Whistleblower Act claim against the City of Madisonville where the El Paso Court of Appeals reversed the granting of the City’s plea to the jurisdiction.

Sims was a police officer with the Madisonville Police Department from November 2004 until he was terminated on July 27, 2012. Sometime prior to termination Sims reported to Madisonville Chief of Police Charles May that he had learned Sims’ supervising officer, Sergeant Jeff Covington, and another officer were conspiring to plant narcotics in the vehicle of Sgt. Covington’s ex-wife. (Covington was in the middle of a custody battle with the ex-wife at the time.) Chief May did not utilize that information. Sims met with Chief May and Covington one day before his termination. Before the meeting, Sims accessed computer files through his own computer and discovered evidence against Covington. Sims claimed Chief May was surprised by Sims’ remote access of the computer files and concluded that Sims had violated the Department’s computer-use policies. Sims was terminated. Chief May asked the Texas Rangers to investigate Sims’ conduct. In August 2012, a grand jury indicted Sims for breaching computer security under the penal code, but the charge was later dismissed.  Sims challenged his F-5 “dishonorable discharge” designation at the State Office of Administrative Hearings ( “SOAH”). The SOAH hearing examiner found in favor of Sims, citing that the elements for a dishonorable discharge had not been met. Sims then filed suit under the Texas Whistleblower’s Act, 90 days after the SOAH hearing. Madisonville asserted that Sims’ two-year wait in filing his suit made it untimely. The trial court granted the plea to the jurisdiction and Sims appealed.

Sims asserted that “non-compliance with the Whistleblower Act’s limitations provisions is not jurisdictional, and that an affirmative defense of limitations cannot be raised in a plea to the jurisdiction but must be proven in summary judgment proceedings.” The court agreed. Madisonville’s plea did not address any specific jurisdictional facts of Sims’ case regarding waiver of sovereign immunity.  It merely asserted the claims were untimely and argued limitations was jurisdictional. The court recognized that under certain statutes, a limitations bar could be jurisdictional, especially if the timing were indispensable to a jurisdictional question. However, that is not the contention raised or presented to the trial court by Madisonville. The court held the statute of limitations defense can be raised as an affirmative defense but not in a plea to the jurisdiction in this case.  The order granting the plea was reversed and remanded.

If you would like to read this opinion, click here. Panel consists of Justice McClure, Justice Rodriguez and Justice Hughes. Opinion by McClure. The docket page with attorney information can be found here.

Sheriff’s deputy unable to sue for TCHRA, Whistleblower Act, and collective bargaining claims says Beaumont Court of Appeals

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Jefferson County, Texas v. Cherisse Jackson, 09-17-00197-CV (Tex. App. – Beaumont, July 26, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the Plaintiff’s claims.

Jackson sued the County alleging the sheriff and Deputy Werner with IA, discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had while viewing a security monitor. Jackson refused and asserts she was later demoted, then not given a lieutenant’s position. Jackson later filed an EEOC complaint asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (“TCHRA”). Six days after Jackson filed her EEOC claim, she sued the County under the Texas Whistleblower Act. The County filed a plea to the jurisdiction which the trial court denied. The County appealed.

The County asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It asserts Jackson was demoted following a Disciplinary Review Board hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the County’s plea support the County’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a Disciplinary Review Board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply.  However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the County demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she has brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for the County are          Kathleen M. Kennedy and Quentin D. Price.  The attorney listed for Jackson is Laurence Watts

A police officer’s subjective preference for assignment is insufficient to prove a materially adverse personnel action says Dallas Court of Appeals

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City of Dallas v. Christopher Worden, 05-17-00490-CV )Tex. App. – Dallas, July 3, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Whistleblower Act case where the Dallas Court of Appeals reversed the denial and dismissed the Plaintiff’s claims.

Worden is a police officer who responded to a suspicious-persons call at a Wal-Mart Supercenter parking lot regarding a group of juveniles. Multiple officers arrived and separated various suspects. During the stop, Officer Nicholas Smith and Sergeant Fred Mears told Worden to take the handcuffs off of a juvenile they had detained. He was unaware at the time that Smith had been threatening to fight the juvenile or that Mears was mocking him. When Worden realized the antagonism, he again handcuffed the juvenile and placed him in the squad car. Worden reported these events (the Juvenile Incident) to his supervisor and other investigators. Then, months later, Worden and other officers responded to a report of an active shooter in a vehicle.  Video of the confrontation reportedly showed Worden “body-slamming” the suspect against the side of his car and inappropriate force. Worden was placed on paid administrative leave during the IA investigation. Worden was later suspended for 10 days due to the Juvenile incident and an additional 15 days due to the active-shooter incident. Worden appealed internally. His record was cleared for the juvenile incident and his suspension for the active-shooter incident was reduced. After returning to work, Worden was reassigned to Communications.  He brought this Whistleblower Act case, based on the juvenile incident. The City filed a plea to the jurisdiction which was denied. The City appealed.

Under the Whistleblower Act, an employee can sue only for adverse employment actions. The test for adverseness under the Act is an objective one: the action taken “must be material, and thus likely to deter a reasonable, similarly situated employee from reporting a violation of the law.” Worden alleges that Communications had “a stigma attached to it,” and that it was “for ‘troubled’ or ‘problem’ officers,” but he offers nothing more than his personal opinion to support that judgment. A police officer’s subjective preference for assignment is insufficient to prove a materially adverse personnel action. Worden alleges further that his assignment to the Department’s Employee Development Program (EDP) was an adverse action taken in retaliation against him for his report concerning the Juvenile Incident. Worden testified that the EDP has a “negative connotation to it” because it operates under the Internal Affairs Department and he believes the program is a remedial one. However, the record established he was “boarded and identified as a candidate” for the EDP in June 2015, shortly after he returned to work from his suspension and was assigned to the Communications Division.  However, Worden did not do anything under the program and was not required to. It therefore is not adverse. A host of other complaints were determined to be minimal issues which did not rise to the level of an adverse action. Finally, the court held Worden failed to establish a causal connection between any alleged actions and his reports. The court declined to apply a conduit theory of liability due to alleged animus from other officers. As a result, the plea should have been granted. The case was reversed and rendered in favor of the City.

If you would like to read this opinion, click here. Panel consists of Justice Francis, Justice Evans and Justice Boatright. Memorandum Opinion by Justice Boatright.  The attorneys listed for the City are Barbara E. Rosenberg, Ayeh Barzin Powers and Sarah Mendola.  The attorneys listed for Worden are John Peter Hagan and Cynthia J. Lambert

Plaintiff’s pro se brief insufficient to preserve arguments on appeal holds Dallas Court of Appeals

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Gilberto Hernandez v. Dallas Independent School District, 05-17-00227-CV (Tex. App. – Dallas, April 18, 2018).

This is a Texas Whistleblower Act case where the Dallas Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

The Dallas Independent School District (“DISD”) employed Hernandez as an elementary school teacher for approximately sixteen years. Prior to the end of the 2013/14 school year Hernandez sued DISD, DISD executive director Jacqueline Lovelace, and other employees in federal district court alleging age discrimination, sex discrimination, constitutional violations, and retaliation under the Texas Whistleblower Act for reports he filed with the TEA, DISD Office of Professional Responsibility (OPR), and Child Protective Services (CPS).  He appeared pro se. While the case was pending, DISD issued a non-renewal of his teacher contract, which was later sustained by an independent hearing examiner. After multiple amendment attempts, the federal district court declined supplemental jurisdiction. Hernandez then filed a Whistleblower claim in state court. DISD filed a plea to the jurisdiction, challenging both the pleadings and the existence of evidence which the trial court granted. Hernandez appealed.

The court of appeals first noted Hernandez did not properly file his brief or cite to record references in support. As a result, the court held “he has preserved nothing for our review.” However, it considered the legal arguments regardless. In a multi-report situation, each report must be evaluated to determine if the complained-of conduct constitutes a violation of actual law and if the report was made to an appropriate law enforcement authority. However, Hernandez’ response to DISD’s plea did not address any of his reports or why the reports should be considered submitted to an appropriate law enforcement authority. Hernandez did not carry his burden. Further, he tried to bring in federal claims on appeal, but his state law petition only contained the Whistleblower Act cause of action.  Finally, Hernandez asserts the statute of limitations, while expired, was tolled for 30 days after dismissal by the federal court under 28 USC §1367(d).  However, the trial court did not dispose of the claims based on the statute of limitations, so §1367 is inapplicable. The order granting the plea was affirmed.

If you would like to read this opinion click here. Panel consists of Justice Lang, Justice Brown, and  Justice Whitehill. Memorandum Opinion by Justice Brown.  Hernandez appeared pro se. The attorneys listed for DISD are Carlos G. Lopez, Kathryn E. Long and Oleg Nudelman.

Texas Supreme Court holds open enrollment charter schools not subject to Texas Whistleblower Act

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Neighborhood centers INC. v. Doreatha Walker; from Harris County, 16-0897, — S.W.3d. –, (Tex. April 13, 2018)

The Texas Supreme Court held that an open enrollment charter school is not subject to the Texas Whistleblower Act.

Neighborhood Centers is an open enrollment charter school which hired Doreatha Walker as a third-grade teacher. She had been on the job only a few months when she complained mold in her classroom was making her and the children sick.  When the school did not respond the way she desired, she emailed her complaint to the Houston Health Department. She also wrote to the Texas Education Agency, asserting that the School had submitted falsified test scores to the Agency before Walker arrived. The next week, Neighborhood Centers terminated Walker. She filed a WBA claim against the non-profit which holds the TEA charter. The court of appeals ruled the WBA waived immunity for Walker’s claims. The Supreme Court accepted the petition for discretionary review.

The Texas Whistleblower Act (the “WBA”) prohibits a “local governmental entity”, including a public-school district, from retaliating against an employee for reporting a violation of law by the employer. The Texas Charter Schools Act (the “CSA”) authorizes the Commissioner of Education to grant eligible entities—usually private, tax-exempt nonprofits—charters to operate open enrollment schools as “part of the public school system of this state.”  Section 12.1056(a) of the CSA states “[i]n matters related to operation of an open-enrollment charter school, an open enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district”. Walker argued the WBA waived the school’s immunity and since it was part of the public school system, the WBA applied. The Court went through a historical listing of the WBA.  It then went through the history of the CSA. Generally, open-enrollment charter schools are “subject to federal and state laws and rules governing public schools”, but they are subject to the Education Code and rules adopted under it “only to the extent the applicability to an open-enrollment charter school . . . is specifically provided.” This gives them greater flexibility in providing education.  In 2015 the Legislature amended the CSA and added Section 12.1058(c) which states “[n]otwithstanding Subsection (a) or (b), an open-enrollment charter school operated by a tax exempt entity . . . is not considered to be a political subdivision, local government, or local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school.”  As the WBA does not specifically apply to open enrollment charter schools, the fact a charter school is a governmental entity for other purposes is not relevant. The statutory sections listing charter schools as having the same immunity as a public school district only means they have immunity from applicable claims, but the WBA is not applicable specifically to charters.  The judgement was reversed and rendered.

If you would like to read this opinion click here. Justice Hecht delivered the opinion of the Court. Justice Justice Johnson delivered a concurring opinion.

Supervisor’s directive that employee “snitch” on anything going wrong is not “criminal activity” under the Texas Whistleblower Act

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Metropolitan Transit Authority of Harris County, Texas v. Ronald Williams 01-17-00724-CV (Tex. App—Houston, January 25, 2018)

This is a Texas Whistleblower Act suit where the First District Court of Appeals in Houston reversed the denial of the employer’s plea to the jurisdiction and rendered judgment for the Metro Authority.

Williams was a track maintainer for Metro. Williams complained to Metro’s compliance officer asserting a hostile work environment by his supervisor, Ratcliff.  Williams alleged Ratcliff instructed him to “snitch” on anyone or anything going wrong on the track and that when Williams expressed reservations Ratcliff became hostile. Later a incident occurred between Williams and another Metro employee, Fred Burton. Burton reported the incident to the Metro police the next day. Burton asserted Williams began to curse at him, calling him a derogatory name for a black person, and threatening to fight him off Metro property. Three other people were witnesses to the incident, including Ratcliff. Williams wrote a response to the incident but asserts Burton’s accusations were retaliation for Williams’ complaint against Ratcliff. Police charged Williams with assault by threat and Metro terminated Williams. On an aside, after Williams was terminated, another employee reported Ratcliff and Burton for theft of Metro property and Williams cooperated with the investigation.  Williams filed suit under the Texas Whistleblower Act. Metro filed a plea to the jurisdiction which the trial court denied. Metro appealed.

“Snitch” means to report on someone else. Williams’ attempt to change the meaning is unsupported in the text of his report. In the context of the entire passage, Ratcliff asking Williams to be his eyes and ears on the track conveys the idea that Williams would watch what other people were doing and report to Ratcliff. Nothing in this passage indicates that Ratcliff was engaged in any criminal activity and seeking Williams’s help in the process.  Simply because Williams was later charged with a crime by another employee does not mean Williams was retaliated against  for his report to the compliance officer. Metro produced evidence that another employee reported the criminal acts of Ratcliff and Burton after Williams was fired. Metro’s evidence established that an officer was assigned to investigate the allegations and that the first time the officer spoke to Williams was after he had been terminated. Metro could, therefore, not retaliate against him because of anything he provided the officer.

If you would like to read the opinion click here. Panel consists of Chief Justice Radack, Justice Higley, Justice Bland. Memorandum opinion by Justice Valdez. The attorney listed for Ronald Williams is Todd Webb. The attorneys listed for Metropolitan Transit Authority of Harris County are Daniel Nicholas Ramirez and Hao Pham Le.

Dallas Court of Appeals holds ex-police officer failed to establish his termination was in retaliation for whistleblower report of “pronoun confusion” in PD assault report

Michael Hackbarth v. University of Texas at Dallas  05-16-01250-CV (Tex. App— Dallas, January 4, 2018)

This is a Texas Whistleblower Act case where the Dallas Court of Appeals affirmed the trial court’s granting of the University’s motion for summary judgment.

Hackbarth was hired as a police officer for the University after retiring from the Dallas Police Department after 28 years of service. While on the force, a specific student at theno  University alleged her boyfriend, Rana, assaulted her. The investigator, MacKenzie, closed the case by allowing the complainant to sign a statement of non-prosecution, but instructed Rana to have no further contact with the complainant. MacKenzie issued an alert to officers to the escalating violence between the couple and that both had refused to prosecute. It advised officers to “take appropriate action” if they made contact and an offense had occurred.  Several months later Hackbarth along with Lt. Montgomery, were dispatched to a disturbance at the University library involving both students. Both denied any altercation.  When MacKenzie reviewed Hackbarth’s report he recognized the names. After consulting with the prosecutor, MacKenzie wanted an arrest for Rana, but Hackbarth insisted no violation occurred.  MacKenzie instructed Montgomery to draft an affidavit in support of an arrest warrant which Hackbarth disagreed with some of the wording. Hackbarth reported the incident to the Chief of Police. The Chief investigated and determined “pronoun confusion” caused an error in the report. Hackbarth complained to the DA and Texas Rangers. Rana later pleaded no contest to Class C assault in municipal court. The University’s assistant director over police performed a month-long investigation into the entire department and determined the complaints were unfounded. However, he listed several other performance failures, which launched an additional investigation. This second investigation revealed Hackbarth violated several department policies at different times and his supervisors relinquished their control over him due to his dominating behavior. MacKenzie was disciplined for failing to arrest Rana initially months before. Hackbarth was terminated along with his immediate supervisor, Brushwiller. After exhausting an appeal panel made up of law enforcement officers from other agencies, Hackbarth filed this whistleblower lawsuit. The trial court granted the University’s motion for summary judgment, which Hackbarth appealed.

When determining whether an agency expresses a negative attitude toward a whistleblower report, courts focus on the words and conduct of the final decision-makers who ultimately approved of the adverse employment action. The assistant director of police at the University made no recommendation or even opinion as to discipline or action to the Chief. It was the assistant director, on his own, who initiated the second investigation with no direction from the Chief or University PD. In determining whether an agency engaged in retaliatory conduct, the plaintiff may present evidence the agency treated a similarly-situated employee differently than it did the plaintiff.  The two examples offered by Hackbarth of comparators (who were progressively disciplined for other infractions) were not true comparators. The assistant director never determined either of these two comparing officers conducted investigations that were “inadequate, and completely devoid of any customary police investigatory procedures” or had the attitude problems attributable to Hackbarth. Brushwiller was also terminated, but made no whistleblower reports.  No evidence presented creates a fact issue to any of these comparative facts. As a result, the trial court properly granted the summary judgment.

If you would like to read this opinion click here.  Panel consists of Chief Justice Francis, Justice Evans and Justice Boatright. Memorandum Opinion by Chief Justice Francis. The attorneys listed for Hackbarth are David K. Watsky and Bob Gorsky. The Attorney listed for the University Of Texas At Dallas is Andrew Harris.

TOMA posting inside City Hall with a “cancelled” stamp on an agenda controlled, regardless of other agendas says 13th Court of Appeals

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City of Donna, Texas, David Simmons, Jose Garza, Simon Sauceda, Irene Munoz and Sonia Gallegos v. Oscar Ramirez 13-16-00619-CV (Tex.App— Corpus Christi, November 9, 2017)

This is a Texas Whistleblower Act case where the Corpus Christi Court of Appeals affirmed the denial of the City Defendants’ plea to the jurisdiction.

Ramirez, the City’s former city manager, brought causes of action against the City under the Texas Whistleblower Act and the Texas Open Meetings Act (“TOMA”). He asserts he was terminated after he reported the Chief of Police and municipal judge for ordering him to waive certain municipal fees. He asserts the meeting where the City Council terminated him was not conducted properly under TOMA. He brought suit against the City and individual officials. The City Defendants filed a plea to the jurisdiction, which the trial court denied. The City Defendants appealed.

The 13th Court first addressed the TOMA violations. The City Charter had a special provision for notice and removal of the City Manager. The City Council could act to terminate at a properly posted meeting, but the City Manager had the right to request another meeting with charges. After the first meeting, Ramirez’ lawyer requested the charges and the second meeting. After it was scheduled, the lawyer requested it be reset and the City Secretary advised him it was reset. And while she provided txts to the council members about the reset and stamped “cancel” on the agenda inside City Hall, the agenda posted outside City Hall did not change.  The meeting proceeded as originally scheduled and the City Council affirmed the termination. The court held Ramirez had standing to sue under TOMA as an interested member of the public.  Under TOMA, a stamp of “canceled” tells the public the meeting would not be held. The fact the notices outside City Hall did not change did not save this defect. The language of §551.050 of TOMA specifically states a posting must exist in the City Hall.  As a result, the trial court did not err. Under the Texas Whistleblower Act, the elements of a  claim must be included in the pleadings so that the court can determine whether they sufficiently allege a violation and therefore waive immunity. The Texas Constitution states, in relevant part, that an entity may not “lend its credit or to grant public money or thing of value in aid of, or to any individual…” Tex. Const. art. III, §§ 50, 52(a).  Additionally, while not expressly listed by statute, the factual allegations trigger various penal statutes as well, including abuse of official capacity under Tex. Penal Code §39.02(a)(West 2015). Ramirez asserts he was ordered to waive and/or discount certain bills and/or charges for certain city services, e.g., sewer and water bills, fees for pavilion rental at the city park, and/or cemetery fees. Such actions, if true, could possibly violate both the Texas Constitution and the penal code. Recognizing that Ramirez’s burden of proof at this stage does not involve a significant inquiry into the substance of his Whistleblower claim, the court held he properly pled a claim. Ramirez’s Whistleblower and TOMA claims were brought solely against the City, while Ramirez’s declaratory judgment action was brought solely against certain appellants in their individual capacities. Since the individuals cannot claim the City’s immunity as a defense for a plea, their part of the appeal is not authorized under the interlocutory appeal statute raised. Tex. Civ. Prac. & Rem. Code §51.014(a)(8)(West 2015).  As a result, the trial court did not err in denying the plea.

If you want to read this opinion, click here. The panel consists of Justice Valdez Justices, Conteras, and Hinojosa. Justice Hinojosa delivered the opinion of the court. To see the attorneys listed for the Appellants and Appellee click here.

Employer could not negate a negative so lost on plea to the jurisdiction in Whistleblower case.

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Billy D. Burleson, Jon J. Mark, and Craig A. Bennight v. Collin County Community College District, 05-15-01361-CV(Tex. App— Dallas, February 8, 2017)

In this Whistleblower Act case, the Dallas Court of Appeals reversed the granting of the College’s plea to the jurisdiction as a fact question exists within the record.

Three police officers, Billy Burleson, Jon Mark, and Craig Bennight (collectively, the “Officers”) were employed by the Collin County Community College District (“College”). Bennight and Burleson were investigating the theft of books from the College bookstore and assert the investigation revealed possible corruption regarding bookstore funds and operations. When they reported their suspicions to the Police Chief of the College they allege they were ordered to close their investigation. Mark asserts he also filed a complaint with the Chief because he was ordered to lock an intoxicated person in a closet for four hours. After their internal grievance procedures were denied, they all filed suit under the Texas Whistleblower Act. The College responded with a plea to the jurisdiction asserting no adverse personnel action exists and they did not properly follow the grievance procedures. The trial court granted the plea and the Officer’s appealed.

The court first held the College improperly tried to supplement the clerk’s record with an addendum to the plea, so such evidence was not considered. Next, the College did not challenge whether the Officers’ petition states sufficient jurisdictional facts and the College’s plea evidence provides the relevant evidence. Thus, the issue is whether the College’s evidence conclusively negates the Officers’ allegations of an adverse personnel action.  As to Mark, six days after his report to the Police Chief, he was “written up” with an “Employee Coaching Form”  which contains (under the Constructive Feedback section) the phrase “describing the job responsibilities or behavior that need to change and how the employee needs to change to meet expectations. (Note: Employee Coaching is not considered formal discipline. However, an employee’s failure to meet and sustain acceptable performance or behavior may result in formal disciplinary action in the future.)”  Examining the reprimand in context, the write-up could constitute an adverse employment action. As to Bennight, he was reassigned to a deep night shift, which he asserts he could not perform the duties of an investigator because he could not file cases when the District Attorney’s Office is closed. He was also transferred to a different campus which he asserts was less prestigious. The College did not present evidence the transfer was less prestigious or that he could still file with the DA, therefore was not able to produce evidence no adverse personnel action existed. For Burleson, he was also transferred to a new shift. The College asserts that while he was informed he would be sent to a new shift, that change never happened. However, the evidence relied upon by the College is not before the court, therefore the court held the College failed to negate the adverse employment action. As a result, the trial court improperly granted the plea.

If you would like to read this opinion click here. The Panel includes Justice Bridges, Justice Lang-Miers, and Justice Whitehill. Justice Whitehill delivered the opinion of the court. Attorney for the Appellant: Chad M. Ruback. Attorney for the Appellee: Charles J. Crawford.

Report to internal IA department of school district not protected by Whistleblower Act, but report to PD officer was

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Anita Connally v. Dallas Independent School District, 08-15-00310-CV ( Tex. App— El Paso, December 21, 2016)

This is a Texas Whistleblower Act case where the El Paso Court of Appeals affirmed-in-part and reversed-in-part the granting of the school district’s plea to the jurisdiction. This is a 32 page opinion.

DISD hired Connally in 2009 as its Director of Compliance, with part of her duties being to make recommendations for University Interscholastic League rules. In order to prevent illegal recruiting of student-athletes, the UIL requires the filing of a Prior Athletic Participation Form (“PAPF”) to ensure that a student-athlete transferring into a new high school actually lives within the new school’s attendance zone. This triggers a host of other forms to be signed and submitted. Connally pointed to several instances of what she categorized as inaccurate or fraudulent forms. She was not in charge of reviewing the forms so had no power to enforce compliance. Connally reported her suspicions of wrongdoing at various times to three departments within DISD: (1) the Office of Professional Responsibility (OPR); (2) the Internal Audit Department (IA); and (3) the Professional Standards Office (PSO) as well as to (4) the Chief and Assistant Chief of the DISD police department; and (5) the PSO’s manager, Jeremy Liebbe, who was a commissioned police officer and a former detective with the DISD police department.  Connally participated as an expert on UIL rules during the investigations. PSO issued a detailed report in which it confirmed virtually all of Connally’s reports of wrongdoing, including falsification of government forms.  Sometime later, Connally was terminated for reported performance issues. She sued under the Texas Whistleblower’s Act. DISD filed a plea to the jurisdiction which was granted.

The court first held none of the departments (OPR, IA, and PSO) were appropriate law enforcement authorities as they only had the power for internal review against employees. None of these departments had any outward facing authority to investigate criminal law violations against third parties. Likewise, the PSO manager, Liebbe, was not in the role of a police officer while he acted as a manager and had no outward facing authority regarding PSO roles. No law authorizes an individual police officer who is commissioned through a police agency, the unfettered authority to conduct an investigation of any nature he chooses without the permission or authority from the agency. Even though Liebbe briefly held his commission with the DISD police department after his transfer, there is nothing in the record to suggest that the DISD police department had authorized him to continue to investigate criminal law violations. The Texas Supreme Court made it clear that it is the governmental arm or entity to which the report is made that is the key focus, and that any report must be made to an individual within that governmental arm or entity. However, DISD police department has the authority to investigate virtually all violations of criminal laws occurring within its jurisdictional boundaries. While the UIL Rules are not criminal in nature, the falsification of a governmental record is a violation of §37.10 of the Texas Penal Code. This falls under the DISD PD authority, which is outward reaching. Therefore, the granting of the plea is sustained as to all reports except the falsification reports to the Chief and Assistant Chief. The claims associated with those reports are reversed and remanded for trial.

If you would like to read the opinion click here. The Panel includes Chief Justice McClure , Justice Rodriguez, and Justice Hughes. Justice Hughes delivered the opinion of the court. Attorneys for the appellant: Giana Ortiz and Daniel A. Ortiz . Attorneys for the Appellee: Kathryn Long and Carlos G. Lopez

 

City initiated termination procedure by suspending employee, so no causal link for report made after suspension but before termination letter

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David Jones v. City of Port Arthur, Texas, 09-14-00442-CV (Tex. App— Beaumont, November 17,2016)

Jones was employed as an operator of a residential garbage truck with the City of Port Arthur. After he was terminated he sued under the Texas Whistleblower Act. Essentially, Jones reported his truck was leaking potentially flammable hydraulic fluid to the City’s Public Works Department and the Solid Waste Management Division Superintendent.  However, he was told the leak was not a problem, the minor repair fixed it and he needed to drive the truck.  He refused, asserting the truck was unsafe to operate on the roadway. He was suspended until his ultimate termination. Jones asserts that during his suspension he reported the violation to OSHA and TCEQ.  The trial court granted the City’s plea to the jurisdiction and motions for summary judgment. Jones appealed.

To be a “good faith” report, an employee must not just believe the entity was an appropriate law enforcement authority under the Act, but his belief must be “reasonable in light of the employee’s training and experience.” He must show that a reasonably prudent public employee in similar circumstances would have believed he had made the report to an appropriate authority and that the report was a violation of law. Jones testified he had obtained two associates degrees, one in management development and the other in process technology. He served in the United States Marine Corps and was assigned to a supply unit.  He does not have training as a mechanic. The court held Jones failed to present evidence that it was reasonable, in light of his training and experience and the circumstances presented, for him to believe the conduct he reported was a violation of the law.  The court held his report to the City Manager did not qualify and neither did any of the internal reports made to different departments. Even if a report is made in good faith, there must be a causal link. The plaintiff must show that the person who took the adverse employment action knew of the employee’s report of illegal conduct. Both reports to outside agencies were made after his supervisor send Jones home indefinitely and initiated termination proceedings. The start of the adverse action was the indefinite suspension, not the final date the termination letter was signed.   Further, no evidence exists the decision maker was aware of the complaints to OSHA or TCEQ prior to the termination letter. As a result, no causal connection exists.

If you would like to read this opinion click here. The Panel includes Chief Justice McKeithen, Justice Kreger, and Justice Horton. Justice Kreger delivered the opinion of the court.  Attorney listed for Jones is Stephen P. Webb. Attorney for the City is listed as Frank D. Calvert.

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

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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.

Mere inquiry into grievance procedure does not toll statute of limitations in Whistleblower case

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Irene Saldivar v. City of San Benito, Texas, 13-15-00387-CV( Tex. App— Corpus Christi , September 29,2016)

This is a Whistleblower Act case were the Thirteenth Court of Appeals affirmed the granting of the City employer’s summary judgment motion.

Saldivar was a Communications Specialist for the City of San Benito Police Department. Saldivar asserts various supervisors requested Saldivar to run criminal history checks on various City employees. She refused to do so and told her supervisors that criminal histories could only be conducted on police applicants and civilian staff that worked in the police department.  Saldivar was demoted and asserts her replacement conducted what she viewed as unauthorized criminal background checks. She notified the Texas Department of Public Safety. Saldivar was then subject to an internal investigation three months later, but the opinion did not address the grounds. As a result of the investigation, the City terminated Saldivar. Saldivar inquired as to the procedures to appeal her termination internally and was provided the grievance procedures. Two years later, Saldivar sued under the Texas Whistleblower Act. The City filed a summary judgment motion asserting Saldivar failed to file suit within ninety days of the termination. The trial court granted the City’s motion and Saldivar appealed.

A public employee who seeks relief under the Texas Whistleblower Act must sue not later than the 90th day after the date on which the alleged violation: (1) occurred; or (2) was discovered by the employee through reasonable diligence. TEX. GOV’T CODE ANN. § 554.005. The ninety-day window to file suit will normally “start to run when the cause of action accrues—in retaliation actions, when the retaliatory action occurs.” This timeframe can be tolled if the employee is pursuing relief under the appropriate grievance system. Saldivar responded that the tolling provision is triggered as soon as she gives “reasonable notice” of her intent to follow the grievance procedure, but she need not do anything else. The court disagreed. She waited more than two years after her termination to bring suit. When Saldivar asked for the grievance procedures, the City provided it but also informed her that she could not grieve or appeal a termination by the City Manager. Saldivar’s only recourse at that point was to file suit. A grievance system that does not apply to an employee’s adverse employment action cannot be used to toll.  As a result, the trial court properly granted summary judgment based on the statute of limitations.

If you would like to read this opinion click here. The Panel Includes Chief Justice Valdez, Justice Garza and Justice  Longoria. Justice Longoria delivered the opinion of the court. The attorney listed for Saldivar is Peter M. Zavaletta.  The attorney listed for the City is J. Arnold Aguilar.