law-WBA | waiver of governmental sovereign immunity | immunity from suit | immune from liability | plea to the
jurisdiction | motion to dismiss for want of jurisdiction | order dismissing suit for lack of subject-matter juris | public
employees | protection against retaliation by employer for reporting violation of the law |
WHISTLEBLOWER ACT CASES DECIDED BY THE TEXAS SUPREME COURT
City of Elsa, TX v. Gonzalez, No. 09-0834 (Tex. Oct. 1, 2010)(per curiam)(whistleblower act, good-faith report of
violation of law to appropriate law-enforcement agency, sufficiency of pleaded jurisdictional allegations).
CITY OF ELSA, TEXAS v. JOEL HOMER GONZALEZ; from Hidalgo County; 13th district (13-07-00555-CV, 292
SW3d 221, 07-09-09)
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 dismisses the case.
Per Curiam Opinion [pdf]
View Electronic Briefs 09-0834 CITY OF ELSA, TEXAS v. GONZALEZ
UH v. Barth, NO. 08-1001 (Tex. June 11, 2010)(per curiam)(jury award in professor's whistleblower suit against
state university thrown out)
[I]n State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), we held that “the elements of section 554.002(a) can be considered to
determine both jurisdiction and liability.” Accordingly, whether Barth’s reports to University officials are good-faith reports of a
violation of law to an appropriate law-enforcement authority is a jurisdictional question. Jurisdiction may be raised for the first time
on appeal and may not be waived by the parties. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). The
University challenges whether the trial court had jurisdiction. Therefore, without hearing oral argument, Tex. R. App. P. 59.1, we
reverse and remand to the court of appeals to determine whether, under the analysis set forth in Lueck, Barth’s claims meet the
Whistleblower Act’s jurisdictional requirements for suit against a governmental entity and, thus, whether the trial court had
jurisdiction over Barth’s suit.
THE UNIVERSITY OF HOUSTON v. STEPHEN BARTH; from Harris County; 1st district (01‑06‑00490‑CV, 265
SW3d 607, 07‑03‑08)
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 [pdf]
View Electronic Briefs 08-1001 THE UNIVERSITY OF HOUSTON v. BARTH
Galveston ISD v. Jaco, No. 09-0195 (Tex. Feb. 12, 2010)(per curiam)
(Tex. Feb. 12, 2010)(per curiam)(WBA case remanded to the court of appeals to determine whether, under
the analysis set forth in Lueck, plaintiff has alleged a violation under the Texas Whistleblower Act) [In]
State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), we held that “the elements of section 554.002(a) can be
considered to determine both jurisdiction and liability.” Accordingly, whether the reporting of a violation of UIL
rules and regulations to the UIL is a good-faith report of a violation of law to an appropriate law-enforcement
authority is a jurisdictional question.
GALVESTON INDEPENDENT SCHOOL DISTRICT v. BRENT JACO; from Galveston County;
14th district (14-08-00271-CV, 278 SW3d 477, 01-20-09)
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
(Justice Guzman not sitting)
UT Southwestern Med. Ctr. at Dallas v. Gentillello MD, No. 08-0696 (Tex. Dec. 18, 2009)(per curiam)
(Whistleblower case remanded in light of decision, holding in State v. Lueck)
[I]n State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), we held that “the elements of section 554.002(a) can be
considered to determine both jurisdiction and liability.” Accordingly, whether the reporting of violations of
Medicare and Medicaid regulations to a supervisor is a good-faith report of a violation of law 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, under the analysis set forth in Lueck, Gentilello has alleged a violation under the Act. See Tex. Gov’t
Code § 554.002(a).
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS v. LARRY M. GENTILELLO, M.
D.; from Dallas County; 5th district (05-07-00845-CV, 260 SW3d 221, 07-18-08)
motion to dismiss dismissed as moot, stay order issued October 2, 2008, lifted
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 [pdf]
TDHHS v. Okoli, No. 07-0642 (Tex. Aug. 28, 2009)(per curiam)(WBA case decided per Lueck, interlocutory
appeal of denial of plea to the jurisdiction)
TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES v. OLIVER OKOLI; from Harris County; 1st district
(01-07-00103-CV, 263 SW3d 275, 06-28-07)
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
TxDOT v. Garcia, No. 07-1030 (Tex. Aug. 28, 2009)(per curiam)
(Whistleblower Act claim, allegation of report of violation of law as basis of claim jurisdictional)
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
State of Texas and TxDoT v. Lueck, No. 06-1034 (Tex. Jun. 26, 2009)(Green)(Whistleblower Act claim dismissed)
(allegation of regulatory noncompliance insufficient, report not to appropriate law enforcement agency, allegation
of violation of the law as jurisdictional element, dismissal on the pleadings by plea to the jurisdiction, no
opportunity to amend afforded)
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK; from
Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06)
motion to dismiss denied
The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction.
Justice Green delivered the opinion of the Court. [pdf 16 pgs.]
City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright)
(Whistleblower Act vs.TCHRA, anti-discrimination statute as exclusive remedy for retaliation claim at issue,
failure to satisfy prerequisites for suit by not filing with agency first)
CITY OF WACO, TEXAS v. ROBERT LOPEZ; from Limestone County;
10th district (10-04-00085-CV, 183 SW3d 825, 12-14-05)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Wainwright delivered the opinion of the Court.
Montgomery County v. Park, No. 05-1023 246 SW3d 610 (Tex. Nov. 30, 2007)(Opinion by Chief Justice
Jefferson) (public employment, governmental entities, WBA, Texas Whistleblower Act, what constitutes an
adverse employment personnel action actionable under the Whistleblower Act?)
MONTGOMERY COUNTY, TEXAS v. DAVID PARK; from Montgomery County; 10th district
(10-04-00231-CV, ___ S.W.3d ___, 10/19/05)
The Court reverses the court of appeals' judgment and renders judgment.
Chief Justice Jefferson delivered the opinion of the Court.
COURT OF APPEALS CASES (pet. denied)
08-0686
CAROLYN REININGER v. TEXAS BUILDING AND PROCUREMENT COMMISSION; from Travis County; 3rd district
(03‑06‑00363‑CV, 259 SW3d 364, 07‑03‑08, pet denied Dec 2008)(whistlblower act, who to complaint to,
appropriate law enforcement agency)
Carolyn Reininger sued her former employer, the Texas Building and Procurement Commission ("TBPC"), under
the Texas Whistleblower Act, see Tex. Gov't Code Ann. §§ 554.001-.010 (West 2004 & Supp. 2007), alleging
that she was wrongfully terminated for making a good-faith report of a violation of law. See id. § 554.002(a) (West
2004). Specifically, Reininger alleged that TBPC terminated her in retaliation for her making a good-faith report
to the comptroller's office that TBPC was violating the law by allowing private vendors to deposit state funds in
the vendor's bank accounts. In fact, the private vendors had provided the State with a bank letter of guarantee,
and the procedure had been pre-approved by the state auditor's office.
TBPC sought summary judgment on traditional and no-evidence grounds challenging various elements of
Reininger's claim. Among other grounds, TBPC asserted that the comptroller's office was not "an appropriate law
enforcement authority" for purposes of Reininger's whistleblower claim and that there was no evidence that
Reininger could have believed in good faith that it was. The district court granted summary judgment in favor of
TBPC without specifying the grounds on which it relied. Reininger appeals. We will affirm the district court's
judgment.
08-0260
RAUL DURAN v. FORT WORTH INDEPENDENT SCHOOL DISTRICT; from Tarrant County; 2nd district
(02-06-00024-CV, ___ SW3d ___, 02-21-08,, pet. denied)(Whistleblower Act claim, no adverse personnel action)
07-0754
TEXAS DEPARTMENT OF CRIMINAL JUSTICE v. EDWARD MCELYEA; from Travis County; 3rd district (03-06-
00244-CV, 239 S.W.3d 842, 07-26-07, pet. denied)(whistleblower suit jury verdict affirmed)
The Texas Department of Criminal Justice appeals a judgment entered pursuant to a jury verdict finding the
Department liable to Edward McElyea for violations of the Texas whistleblower statute and awarding McElyea
actual damages and attorney's fees. See Tex. Gov't Code Ann. § 554.002 (West 2004). In its sole issue on
appeal, (1) the Department contends that legally and factually insufficient evidence was presented at trial to
support findings that McElyea reported a violation of law in good faith and that his report was causally linked to
the decision not to rehire him after a reduction in force eliminated his position at the Department. We will affirm
the trial court's judgment.
08-0112
R. SCOTT PHELAN v. TEXAS TECH UNIVERSITY; from Travis County; 7th district
(07-07-00171-CV, ___ S.W.3d ___, 01-23-08, pet. denied)(whistleblower claim rejected, due process)
Appellant, Dr. R. Scott Phelan, appeals from two separate orders granting summary judgment in favor of
Appellee, Texas Tech University, and denying summary judgment in his favor. By four points of error, Phelan
contends the trial court erred in granting Texas Tech's motion for summary judgment because (1) an adverse
personnel action taken after a governmental employee files an assault charge against a supervisor is covered by
the Texas Whistleblower Act, (1) (2) he did report illegal governmental action to a proper law enforcement
agency, (3) Texas Tech did deny Phelan his due process rights, and (4) did deprive him of his "liberty interests"
in violation of Article 1, § 19 of the Texas Constitution. We affirm.
We hold Phelan is not entitled to protection under the Whistleblower Act for the reported assault because he has
failed as a matter of law to prove a causal link between the filing of his criminal complaint and his non-
reappointment. Our decision pretermits consideration of whether an assault of the person is a "violation of law"
as contemplated by the Act. Tex. R. App. P. 47.1. Point of error one is overruled.
The Texas Whistleblower Act prohibits a state or local government from taking 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). The cause of action created by the Act is purely statutory creating a right unknown at common
law. Scott v. Godwin, 147 S.W.3d 609, 621 (Tex.App.-Corpus Christi 2004, no pet.); City of San Antonio v. Heim,
932 S.W.2d 287, 290 (Tex.App.-Austin 1996, writ denied). The statute was enacted to protect public employees
who report illegal activity and enhance openness in government while compelling compliance with the law.
Castaneda v. Texas Dep't of Agriculture, 831 S.W.2d 501, 503 (Tex.App.-Corpus Christi 1992, writ denied).
Because the statute is remedial in nature, it is to be liberally construed. Roberts v. Titus County Memorial Hosp.,
159 S.W.3d 764, 769 (Tex.App.-Texarkana 2005, pet. denied), cert. denied, 564 U.S. 1095, 126 S.Ct. 1070, 163
L.Ed.2d 862 (2006). And, whether a violation of law has been reported to an appropriate law enforcement
authority is a question of law to be decided by the court. City of Fort Worth v. DeOreo, 114 S.W.3d 664, 668 (Tex.
App.-Fort Worth 2003, no pet.).
To establish a claim for retaliation under the Act, the claimant must prove the following elements: (1) he is a
public employee; (2) he acted in good faith in making a report; (3) the report involved a violation of law; (4) the
report was made to an appropriate law enforcement authority; and (5) he suffered retaliation as a result of
making the report. County of Bexar v. Steward, 139 S.W.3d 354, 357-58 (Tex.App.-San Antonio 2004, no pet.).
The Act defines a "law" as a state or federal statute, ordinance of a local governmental entity, or rule adopted
under a statute or ordinance. Tex. Gov't Code Ann. § 554.001(1) (Vernon 2004). (2) An "appropriate law
enforcement authority" is a governmental entity that the employee in good faith believes is authorized to
"regulate under or enforce the law alleged to be violated in the report" or "investigate or prosecute a violation of
criminal law." Tex. Gov't Code Ann. § 554.002(b) (Vernon 2004).
To establish a "good faith" reporting, the complainant must show that his belief was reasonable in light of the
employee's training and experience. Texas Dep't of Transportation v. Needham, 82 S.W.3d 314, 321 (Tex.
2002). See Duvall, 82 S.W.3d at 480-81.
For purposes of this appeal, Texas Tech does not contend that Phelan was not a public employee who suffered
an adverse personnel action. Texas Tech's defense rests upon its contention that (1) Phelan did not report a
violation of the law as contemplated by the Whistleblower's Act, (2) the reports Phelan did make were not to an
appropriate law enforcement agency, and (3) there is no causal connection between Phelan's report and Texas
Tech's decision to non-reappoint him.
08-0039
CYNTHIA M. SCOTT v. HOUSTON COMMUNITY COLLEGE SYSTEM, BRUCE LESLIE, DIANA CASTILLO, AND
REYNALDO GARAY; from Harris County; 14th district (14-07-00040-CV, ___ SW3d ___, 11-29-07, pet. denied
April 2008) (public employment disputes, breach of employment contract, IIED, WBA)
Appellants, Stan H. Looper and Cynthia M. Scott, appeal the trial court's grant of summary judgment on claims of
breach of contract, defamation, intentional infliction of emotional distress, negligent hiring, and violations of the
Texas Whistleblower Act in favor of appellees, Houston Community College System ("HCCS"), Bruce Leslie,
Diana Castillo, and Reynaldo Garay. We affirm.