Opinion
No. 08-02-00058-CV
July 24, 2003
Appeal from the 143rd District Court of Reeves County, Texas (TC# 01-03-17027-CVR)
Attorney for Appellant: Hon. Cindy R. Weir-Nutter, Law Offices of Cindy Weir-Nutter, 5050 E. University, Suite 5, Odessa, TX 79762-8100.
Attorney for Appellee: Hon. Walter C. Brocato, Asst. Atty. General, P.O. Box 12548, Austin, TX 78711-2548.
Before Panel No. 5 McClure, J., Chew, J., and Preslar, C.J. (Ret.) Preslar, C.J. (Ret.)(Sitting by Assignment).
MEMORANDUM OPINION
Appellant, Paul Henderson, sued his employer, the Texas Department of Transportation (the "Department") under the Texas Whistle Blower Act. The trial court dismissed the cause for want of subject matter jurisdiction. The single issue is: When an employee reports illegal activity to his superiors and refuses to participate in that activity, and is demoted as a result, is the case properly before the court as a whistle blower violation? We affirm.
Appellant was the Pecos Area Engineer for the Texas Department of Transportation. As part of his duties, he was responsible for overseeing a project referred to as the "SH 115 project." Appellant and his supervisor disagreed about how the project should be handled. In particular, Appellant's supervisor wanted a one-mile portion of the road to be torn up and redone by the contractor. Appellant believed that some minor corrective action would be adequate. Appellant felt his supervisor's proposed action would constitute harassment of the contractor. Appellant was subsequently demoted.
Appellant filed suit against the department several months after his demotion. In the interim, the Department had taken the action against which Appellant advised. The State filed a motion to dismiss based on lack of subject matter jurisdiction. The trial court granted the motion and dismissed the case.
A plea to the jurisdiction is a dilatory plea by which a party challenges the trial court's authority to determine the subject matter of the cause of action. See Texas Dept. of Transportation v. Jones, 8 S.W.3d 636, 637-38 (Tex. 1999); City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd w.o.j.). Its purpose is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). 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 Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Sullivan, 33 S.W.3d at 6.
The plaintiff has the burden to allege facts affirmatively demonstrating the subject-matter jurisdiction of the trial court. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). The lower court is required to construe liberally the allegations in favor of jurisdiction unless the face of the petition affirmatively establishes a lack of jurisdiction. Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989). Thus, dismissal of a cause of action for lack of subject-matter jurisdiction is proper only when it is impossible for the plaintiff's petition to confer jurisdiction on the trial court. TRST Corpus, Inc. v. Financial Ctr., Inc., 9 S.W.3d 316, 320 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).
On appellate review of a trial court's dismissal for want of jurisdiction, we construe the pleadings in favor of the plaintiff and look to the pleader's intent. Tex. Air Control Bd., 852 S.W.2d at 446. We may consider a plaintiff's pleadings, assertions of fact, and any evidence submitted by the parties relevant to the jurisdictional issue. Tex. Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); Jones, 8 S.W.3d at 639. Our task is to determine whether Appellant pleaded a claim that appropriately invoked the trial court's jurisdiction. The reviewing court should not address the merits of the case. Blue, 34 S.W.3d at 554. Instead, this Court must decide whether the facts as alleged support jurisdiction in the trial court. University of Tex. Med. Branch of Galveston v. Hohman, 6 S.W.3d 767, 771 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.).
The Texas Whistle Blower Act prohibits a state or local governmental entity 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 Supp. 2003). Section 554.002(b) of the Whistle Blower Act further provides:
(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 authorized to:
(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).
In this case, Appellant told his supervisor that a proposed action "would be a blatant act of harassment" towards a contractor hired by the Department. Appellant maintains this constitutes a report of a violation of law to an appropriate law enforcement authority under Section 554.002. We first consider whether the Texas Department of Transportation is an appropriate law enforcement authority for the purposes of this claim.
Appellant contends the actions urged by his supervisor constitute "blatant harassment." He alleges the action is illegal under Sections 39.02 and 7.02(a)(3) of the Penal Code. So the question is whether the Texas Department of Transportation has the authority to regulate under, enforce, investigate, or prosecute a violation of Sections 39.02 and 7.02(a)(3) of the Texas Penal Code. Under the Whistle Blower Act, it is not enough that a government entity has general authority or power to regulate, enforce, investigate, or prosecute. Texas Department of Transportation v. Needham, 82 S.W.3d 314, 319 (Tex. 2002). The particular law the public employee reported violated is critical to the determination of whether the prerequisites of the Act were met. Needham, 82 S.W.3d at 320. Here, after analyzing the reported violation of law, we conclude that this agency was not an appropriate law enforcement authority. The Texas Department of Transportation has no authority to regulate under or enforce Sections 39.02 and 7.02(a)(3). Nor does it have authority to investigate or prosecute these criminal laws. At most, the agency has authority to regulate and investigate its employees' conduct only to carry out its internal disciplinary process procedures. An agency's internal disciplinary power does not bring it within the ambit of serving as "an appropriate law enforcement authority" under the Whistle Blower statute. Needham, 82 S.W.3d at 320. Accordingly, Appellant has failed to meet a fundamental element of the act because he did not report a violation of law to an appropriate law enforcement agency.
However, our conclusion that the Texas Department of Transportation is not a governmental entity authorized to regulate under, enforce, investigate, or prosecute Sections 39.02 and 7.02(a)(3) of the Texas Penal Code does not end our analysis. Appellant may still obtain protection under the Whistle Blower Act if he in good faith believed that the Texas Department of Transportation was an appropriate law enforcement authority as the statute defines the term. See Tex.Gov'T Code Ann. § 554.002(b).
The Texas Supreme Court has defined "good faith" under the Act as:
(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and
(2) the employee's belief was reasonable in light of the employee's training and experience.Needham, 82 S.W.3d at 321. Here, the Appellant adduced no such evidence in his pleadings or at the hearing on the motion to dismiss. He has not addressed this issue on appeal; and after reviewing the full record on appeal, we find no evidence to support a finding that Appellant had a good faith belief that the Texas Department of Transportation was an appropriate law enforcement authority under the Whistle Blower Act to report a violation of Sections 39.02 and 7.02(a)(3) of the Penal Code. Thus, the trial court's dismissal for want of jurisdiction was appropriate. Appellant's issue on appeal is overruled.
We affirm the judgment of the lower court.