TxDOT v. Garcia, No. 07-1030 (Tex. Aug. 28, 2009)(per curiam)(Whistleblower Act, allegation of
violation of law jurisdictional per Lueck; case remanded for jurisdictional determination)
[F]or the reasons explained in Lueck, we reverse and remand to the court of appeals
to determine whether Garcia has alleged a violation under the Act. See Tex. Gov’t
Code § 554.002(a).
TEXAS DEPARTMENT OF TRANSPORTATION v. SERGIO GARCIA; from Cameron County;
13th district (13-07-00004-CV, 243 SW3d 759, 11-01-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion
View Electronic Briefs in TEX. DEPT. OF TRANSP. v. GARCIA
TxDOT v. Garcia (Tex. 2009)(per curiam)
Sergio Garcia sued the Texas Department of Transportation (TxDOT) under the Texas
Whistleblower Act, alleging that he was forced to resign based on two incidents in which he reported
violations of law to the “enforcement authorities within [TxDOT].” TxDOT filed a plea to the jurisdiction
based on immunity from suit, claiming that the trial court lacked subject-matter jurisdiction because
Garcia failed to make a good faith report of a violation of law to an appropriate law enforcement
authority. See Tex. Gov’t Code § 554.002(a). The trial court denied the plea to the jurisdiction and
TxDOT took an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (permitting
appeal from an interlocutory order that denies a plea to the jurisdiction by a governmental unit).
The court of appeals affirmed, holding that the section 554.002(a) elements are not jurisdictional
prerequisites but rather go to the merits of the claim. 243 S.W.3d 759, 762–63; see also Tex. Gov’t
Code § 554.0035.
However, in State v. Lueck, ___ S.W.3d ___, ___ (Tex. 2009), we held that “the elements of section
554.002(a) can be considered to determine both jurisdiction and liability.”
Accordingly, whether Garcia’s report of violations of the law to “enforcement authorities within
[TxDOT]” was a good faith report to an appropriate law enforcement authority is a jurisdictional
question. Therefore, without hearing oral argument, Tex. R. App. P. 59.1, and for the reasons
explained in Lueck, we reverse and remand to the court of appeals to determine whether Garcia has
alleged a violation under the Act. See Tex. Gov’t Code § 554.002(a).
OPINION DELIVERED: August 28, 2009
OPINION OF THE COURT OF APPEALS BELOW
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF TRANSPORTATION, Appellant,
SERGIO GARCIA, Appellee.
On appeal from the 103rd District Court of Cameron County, Texas.
Before Chief Justice Valdez and Justices Garza and Vela
Opinion by Justice Vela
This is an interlocutory appeal from the denial of a plea to the jurisdiction in a whistleblower case. By one
issue, appellant, the Texas Department of Transportation (TxDOT), complains that the trial court erred in
denying its plea because appellee, Sergio Garcia (Garcia), did not plead and cannot show, as a matter of
law, that he reported a violation of law to an appropriate law enforcement authority as required to establish a
whistleblower cause of action. We hold that the trial court did not err in denying TxDOT's plea to the
jurisdiction and affirm the judgment of the trial court.
On May 17, 2004, Garcia, a former employee of TxDOT's Pharr District, filed suit against TxDOT, seeking
relief under the Texas Whistlerblower Act. Tex. Gov't Code Ann. §§ 554.001-101 (Vernon 2004). Garcia
alleged that Javier Gonzales, a co-worker, directed him to use TxDOT tools to "do private work" during state
work hours. According to Garcia, he refused to perform the requested acts and reported Gonzales' actions to
"enforcement authorities within the Texas Department of Transportation, but no action was taken." Garcia
further alleged that on another occasion he saw another TxDOT employee "drinking on the job and driving a
company vehicle." Garcia pleaded that he also reported this incident, "but again no action was taken." Garcia
complained that his employment conditions continued to worsen, forcing him to seek medical attention, and
finally, "out of despair," he resigned.
Garcia sued TxDOT pursuant to the Texas Whistleblower Act ("the Act"). On June 30, 2006, TxDOT filed a
plea to the jurisdiction, challenging the existence of jurisdictional requirements to support a claim under the
Act. Garcia responded, arguing that a question regarding whether he reported a violation to the appropriate
law enforcement agency should be made in a motion for summary judgment, not a plea to the jurisdiction.
On August 17, 2006, the trial court held a hearing on TxDOT's plea to the jurisdiction. On October 2, 2006,
the trial court sent a letter to the parties notifying them that it believed that notification had been given to a
TxDOT supervisor, not a law enforcement officer who could investigate and prosecute the perpetrator. The
court stated, however, that although most of the issues had been resolved by the supreme court in Texas
Department of Transportation v. Needham, it was reluctant to extend Needham to a plea to the jurisdiction
instead of a summary judgment motion without guidance from an appellate court. See Tex. Dept. of Transp. v.
Needham, 82 S.W.3d 314 (Tex. 2002). On December 11, 2006, the court issued a formal denial of the plea to
the jurisdiction and TxDOT filed this interlocutory appeal.
Standard of Review
A plea to the jurisdiction challenges a trial court's authority to consider the subject matter of a claim. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Its purpose is "to defeat a cause of action without
regard to whether the claims asserted have merit." Id. at 554. Because the existence of subject-matter
jurisdiction is a question of law, the trial court's ruling on a plea to the jurisdiction is reviewed under a de novo
standard. Mayhew v. Town of Sunnnyvale, 964 S.W.2d 922, 928 (Tex. 1988). When reviewing a trial court's
dismissal for want of jurisdiction, an appellate court may consider a plaintiff's pleadings, assertions of fact,
and any evidence submitted by the parties relevant to the jurisdictional issue. Tex. Dep't of Criminal Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001).
An appellate court's task in this type of appeal is to determine whether the plaintiff pleaded a claim that
appropriately invoked the trial court's jurisdiction. The reviewing court, however, should not address the
merits of the case. Blue, 34 S.W.3d at 554. Instead, the appellate court must decide whether the facts as
alleged support jurisdiction in the trial court. Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d
767, 771 (Tex. App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.).
A. Sovereign Immunity
TxDOT recognizes that it can be sued under the Texas Whistleblower Act ("the Act") because the Act
contains an express waiver of sovereign immunity, if a plaintiff alleges a cognizable violation of the Act. Tex.
Gov't Code Ann. § 554.0035 (Vernon 2004); State v. Lueck, 212 S.W.3d 630, 635 (Tex. App.-Austin 2006,
pet. denied); Hill v. Burnet County Sheriff's Dep't, 96 S.W.3d 436, 440 (Tex. App.-Austin 2002, pet. denied). If
a plaintiff fails to allege facts stating a claim under the Act, and the evidence does not establish that the claim
is within the scope of the statutory waiver of immunity, a trial court is without subject matter jurisdiction. The
pleadings are construed liberally in favor of the plaintiff. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.
W.2d 440, 446 (Tex. 1993).
B. The Whistleblower Act
Under the Whistleblower Act, a state or local governmental entity may not suspend or terminate the
employment of, or take other adverse personnel action against a public employee who in good faith reports a
violation of law by the employing governmental entity or another public employee to an appropriate law
enforcement authority. Tex. Gov't Code Ann. § 554.002(a)(Vernon 2004). Section 554.002(b) of the Act
(b) In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a
state or local governmental entity or of the federal government that the employee in good faith believes is
(1) regulate under or enforce the law alleged to be violated in the report; or
(2) investigate or prosecute a violation of criminal law.
Tex. Gov't Code Ann. § 554.002(b)(Vernon 2004).
C. The Nature of TxDOT's Challenges
TxDot argues that Garcia failed to invoke the Whistleblower's Act because the record does not reflect
evidence that the acts by TxDOT employees amounted to violations of the law or that Garcia believed them to
be violations of the law. TxDOT also urges that Garcia failed to plead and cannot show as a matter of law that
he went to an appropriate law enforcement authority. Tex. Gov't Code Ann. § 554.002(a)(Vernon 2004). In
other words, TxDOT claims that Garcia may not simply allege violations of the Whistleblower's Act. Instead, he
must allege specific facts relating to the merits of his claim.
Both the Austin and Houston courts have rejected the argument that TxDOT presents to this court. See Tex.
Dep't of Human Services v. Okoli, ___S.W.3d____, 2007 WL 1844897 (Tex. App.-Houston [1st Dist.] 2007,
pet. filed) (1); State v. Lueck, 212 S.W.3d 630, 635-38 (Tex. App.-Austin 2006, pet. filed); Tex. Bd. of
Pardons & Paroles v. Feinblatt, 82 S.W.3d 513, 520-22 (Tex. App.-Austin 2002, pet. denied) (2).
In these cases, governmental entities appealed the denials of jurisdictional pleas that had attacked the
whistleblower's claims as not being good faith reports of violations of the law and that the employees did not
have good faith beliefs that the violations were being reported to appropriate law enforcement authorities.
See Okoli, 2007 WL 1844897 at *2; Lueck, 212 S.W.3d at 634; Feinblatt, 82 S.W.3d at 520. Each of these
cases reasoned that, in a whistleblower suit, a plaintiff's good faith report of illegal activity is an element of the
cause of action, not a jurisdictional prerequisite to suit. In Feinblatt, the court stated that an element of a
plaintiff's cause of action does not affect the trial court's subject matter jurisdiction, rather, it affects the merits
of the cause of action. Feinblatt, 82 S.W.3d at 520.
The Whistleblower's Act's waiver of immunity from suit provides that an employee may sue for relief pursuant
to the government code. Tex. Gov't Code Ann. § 554.035(Vernon 2004). In Lueck, the court iterated that the
only facts relevant to a jurisdictional inquiry are the plaintiff's status as a public employee and whether the
plaintiff adequately alleged a violation of the Act. Lueck, 212 S.W.3d at 636. The Okoli court similarly
determined that whether an employee had a good faith belief in reporting a violation to a law enforcement
authority, whether the employee had a good faith belief that the agency to which the report was made was
proper, and whether the matter reported was actually a violation of the law are all irrelevant to whether
subject matter jurisdiction exists. Okoli, 2007 WL 1844897 at *3. Here, as in Okoli, the plaintiff met the two
requirements. He pleaded that he was a public employee and, viewing the pleadings in his favor, adequately
alleged a violation of the Act.
The supreme court has not yet ruled on this precise issue. In Needham, the court concluded that under the
circumstances of that case, TxDOT was not an appropriate law enforcement authority. Needham, 82 S.W.3d
at 315. Needham was reviewed by the supreme court in the context of a trial on the merits. Id. The supreme
court addressed the issue of whether the term "appropriate law enforcement authority" included TxDOT
under the particular circumstances of that case. Ultimately, the Needham court held that TxDOT was not the
appropriate law enforcement authority for a public employee to report another employee's violation of Texas's
driving while intoxicated laws. Id. at 320. The court also determined that there was no evidence to support a
finding that Needham had a good faith belief that TxDOT was an appropriate law enforcement authority to
report a drunk driving incident. Id. at 321. The Needham court addressed the merits of the claim and did not
consider the questions before it as jurisdictional prerequisites. Had the court determined that these were
jurisdictional prerequisites, we are confident it would have dismissed the case rather than rule on the merits.
A court's lack of jurisdiction requires dismissal of a case. Volume Millwork, Inc. v. West Houston Airport Corp.,
218 S.W.3d 722, 726 (Tex. App.-Houston [1st Dist.] 2006, pet. denied).
The Whistleblower Act makes the only jurisdictional prerequisites to maintaining a suit the plaintiff's status
and the sufficiency of the whistleblower allegations. Okoli, 2007 WL 1844897 at *5. These prerequisites were
met in this case. We hold that the trial court did not err in denying the plea to the jurisdiction.
The judgment of the trial court is affirmed.
Opinion delivered and filed
this 1st day of November, 2007.
1. In Okoli, the court iterates that it is not following this court's opinion in Scott v. Godwin, 147 S.W.3d 609,
620-23 (Tex. App.-Corpus Christi 2004, no pet.), among other cases. We do not believe that Scott is in
conflict. The opinion in Scott discusses a more stringent test, but ultimately held that sufficient facts to
support jurisdiction had been pleaded.
2. See contra Potter County v. Parton, No. 07-03-0338-CV, 2005 WL 1355111 (Tex. App.-Amarillo June 8,
2005, no pet.) (per curiam); Henderson v. Tex. Dept. of Transp., No. 08-02-00058-CV, 2003 WL 21710744
(Tex. App.-El Paso July 24, 2003, no pet.) (mem. op., not designated for publication).