Reverse and Dismiss and Opinion Filed February 28, 2014




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-00254-CV

                DALLAS INDEPENDENT SCHOOL DISTRICT, Appellant
                                    V.
                          DOUGLAS WATSON, Appellee

                       On Appeal from the 95th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-08-12298-D

                             MEMORANDUM OPINION
                       Before Justices Moseley, Bridges, and Lang-Miers
                                   Opinion by Justice Bridges
       Dallas Independent School District (DISD) appeals the trial court’s judgment in favor of

Douglas Watson on Watson’s claim under the Texas Whistleblower Act. In four issues, DISD

argues the trial court erred in finding it had subject-matter jurisdiction over Watson’s claim, and

the evidence was factually insufficient to support the jury’s finding that Watson’s claim met the

requirements of a whistleblower claim; Watson did not provide to DISD the requisite notice of

the potential of a whistleblower claim, and the trial court erred in submitting DISD’s proposed

jury question on the issue of notice; the trial court erred in denying DISD’s motion for judgment

notwithstanding the verdict on the Whistleblower Act’s statutory affirmative defense, the

evidence was legally and factually insufficient to support the jury’s finding that Watson’s phone

calls to regulatory agencies were the “but for” cause of his termination, and the trial court erred
in refusing to submit a related jury question and excluding evidence of Watson’s disciplinary

problems; and the evidence was legally and factually insufficient to support the jury’s award of

$400,000 in attorney’s fees. We reverse the trial court’s judgment and dismiss this cause for lack

of subject-matter jurisdiction.

        Watson worked for DISD as a plumber for nineteen and a half years until he was given

notice of termination in September 2007 and subsequently terminated. On July 11, 2007, Debbie

Pruitt, Watson’s supervisor, notified him to stop his normal duties and start gas tests at schools in

their division. Watson testified Pruitt “demanded that we do three [tests] a day.” Watson and a

co-worker, James Mullins, told Pruitt they were not sure they could complete three tests in a day.

Watson and Mullins completed only one gas test that day.

        On July 12, Pruitt indicated that Watson and Mullins “needed to hurry up,” and she gave

them additional work orders to complete. Watson completed a gas test on Walnut Hill Lane and

proceeded to Hillcrest High School. Watson detected leaks in the system at Hillcrest and

reported back to the office at the end of the day. Pruitt summoned Watson to her office where

they discussed Watson’s progress. An argument ensued, and Pruitt led Watson to the office of

Cesar Villareal, with whom Pruitt shared the responsibilities of plumbing supervisor. The

argument over the gas tests continued in Villareal’s office, and Villareal ultimately asked Watson

to leave the office.

        On July 13, Watson called the Texas Railroad Commission (TRC) to “inform them [he]

was being pressured into doing these gas tests in an unsafe, hurried-up manner.” Watson

contacted the TRC because they were “the ones that require that the school districts do these gas

tests.” The person Watson spoke to at the TRC told him to contact the Texas State Board of

Plumbing Examiners (TSBPE). Watson called TSBPE and stated “it had been demanded of

[him] that [he] do these three gas tests a day and that [he] felt like it was in an unsafe manner and

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that for – in order for [him] to comply . . . .” The TSBPE representative did not tell Watson to

file a written complaint, and Watson did not file a written complaint.

       On Monday, July 16, Watson returned to work, and Pruitt told him he was “being taken

off the gas tests.” Watson was subsequently notified his employment was being terminated

because of his insubordination and hostile and belligerent behavior.          Watson appealed his

termination through the grievance process, but he was ultimately terminated. Watson filed suit,

claiming his termination violated the Texas Whistleblower Act. DISD filed a plea to the

jurisdiction asserting Watson did not meet the requirements of the Whistleblower Act, and the

trial court therefore lacked subject-matter jurisdiction. The trial court denied DISD’s plea to the

jurisdiction, and the case went to trial. A jury found (1) Watson made a good faith report of a

violation of law by DISD to the TSBPE and/or the TRC and (2) his report was the cause of his

termination. In accordance with its verdict, the jury awarded Watson damages and attorney’s

fees. The trial court entered judgment in favor of Watson, and this appeal followed.

       In its first issue, DISD argues the trial court erred in finding it had subject-matter

jurisdiction over Watson’s claim, and the evidence was factually insufficient to support the jury’s

finding that Watson’s claim met the requirements of a whistleblower claim.

       The State and state agencies are immune from suit and liability in Texas unless the

Legislature expressly waives sovereign immunity. State v. Lueck, 290 S.W.3d 876, 880 (Tex.

2009); see Mullins v. Dallas Indep. Sch. Dist., 357 S.W.3d 182, 185 (Tex. App.—Dallas 2012,

pet. denied) (school districts such as DISD are immune from suit and liability unless legislature

expressly waives sovereign immunity). The immunity provision in the Whistleblower Act states:

        A public employee who alleges a violation of this chapter may sue the employing state or
local governmental entity for the relief provided by this chapter. Sovereign immunity is waived
and abolished to the extent of liability for the relief allowed under this chapter for a violation of
this chapter.



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TEX. GOV’T CODE ANN. § 554.0035 (West 2012); Lueck, 290 S.W.3d at 881. The standard for a

“violation of this chapter” appears in section 554.002(a), which provides that the 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) (West 2012).

       The section 554.002(a) elements are jurisdictional in the sense that they must be pleaded

in order for a plaintiff to have adequately alleged a violation of the chapter. Lueck, 290 S.W.3d

at 884. “When a plea to the jurisdiction challenges the pleadings, we determine if the pleader

has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Id.

(quoting Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). “If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiffs an opportunity to amend.” Id. (quoting Miranda, 133

S.W.3d at 227.

       Here, Watson’s petition alleged he “contacted Johnny Burgess of the Texas Railroad

Commission Pipeline Safety Division and Alex Rosenthal of the Texas State Board of Plumbing

Examiners to report that he was being pressured by his supervisors at DISD to conduct gas tests

on an accelerated basis rather than in a safe and complete manner.” At trial, Watson testified he

“was being pressured into doing these gas tests in an unsafe, hurried-up manner” and “it had

been demanded of [him] that [he] do these three gas tests a day and that [he] felt like it was in an

unsafe manner” for him to comply with the demand. Watson argues that, even if he “was

mistaken about the correct law, he still receives whistleblower protection . . . if he made the

report in good faith,” citing Texas Department of Transportation v. Needham, 82 S.W.3d 314,

320 (Tex. 2002); Texas Department of Criminal Justice v. McElyea, 239 S.W.3d 842, 850 (Tex.

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App.—Austin 2007, pet. denied); and City of Brenham v. Honerkamp, 950 S.W.2d 760, 764

(Tex. App.—Austin 1997, pet. denied).

       In Needham, a Texas Department of Transportation (TxDOT) employee reported to a

TxDOT supervisor that a fellow employee had been driving while intoxicated. Needham, 82

S.W.2d at 317-18.      The court initially determined TxDOT was “not an appropriate law

enforcement authority” under section 554.002(b) because it did not have any authority to

regulate under or enforce Texas’s driving while intoxicated laws nor did it have authority to

investigate or prosecute these criminal laws. Id. at 320. The court noted the reporting employee

could still obtain Whistleblower Act protection if he in good faith believed that TxDOT was an

appropriate law enforcement authority under section 544.002(b). Id. Although “good faith” had

not been defined under section 544.002(b), the court set out the definition of the term in the

context of subsection (a)’s requirement that the reporting employee have a good faith belief that

another employee violated the law. Id. Citing Wichita County v. Hart, 917 S.W.2d 779, 784

(Tex. 1996), the court reiterated “good faith” means that (1) the employee believed that the

conduct reported was a violation of law and (2) the employee’s belief was reasonable in light of

the employee’s training and experience. Needham, 82 S.W.3d at 320. Without applying the

good faith test as it applied to the report of a violation of law, the court concluded the same test

applies “to determine if a public employee in good faith believed the governmental entity to

which he reported a violation of law was an appropriate law enforcement authority.” Id. at 320-

21. Under the facts of that case, the court concluded there was no evidence to support a finding

that the reporting employee had a good faith belief that TxDOT was an appropriate law

enforcement authority under the Whistleblower Act to report a co-worker’s drunk driving. Id. at

321.




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       In McElyea, an internal affairs investigator in the Texas Department of Criminal Justice

reported to his superiors that a TDCJ peace officer had “violated Department policies concerning

approval of off-duty jobs and also potentially violated the Private Security Act and state law

governing the use of state vehicles.” McElyea, 239 S.W.3d at 845. Citing Hart, the court set

forth the definition of “good faith” in the whistleblower context as (1) the employee believed that

the conduct reported was a violation of law and (2) the employee’s belief was reasonable in light

of the employee’s training and experience. Id. at 850 (citing Hart, 917 S.W.2d at 784). The

court stated the first element, “honesty in fact,” ensures that a public employee seeking a

whistleblower-statute remedy believed that he was reporting an actual violation of law. Id.

(citing Needham, 82 S.W.3d at 320). The second element ensures that even if the reporting

employee honestly believed the reported act was a violation of law, the reporting employee only

receives protection if a reasonably prudent employee in similar circumstances would have

believed the facts as reported constituted a violation of law. Id.

       The court in McElyea noted that, on appeal, the TDCJ took the position that the

investigator’s report was “too equivocal” and “phrased as a potential violation, not an actual

violation” of law. Id. at 851. Therefore, TDCJ argued, the investigator failed to “make the

necessary showing that he believed that a crime had been committed and has thus failed to

satisfy the test’s subjective ‘honesty in fact’ element.”      Id. The court determined TDCJ’s

argument ignored the investigator’s “testimony in which he pinpointed the law that he believed

[the officer] had violated and unequivocally asserted that he made the report.” Id. The court

concluded this evidence would allow a reasonable jury to conclude the investigator reported

what he believed was an actual violation of law, not a potential violation. Id. at 852. Thus, the

investigator satisfied the first good faith element. See id. at 851-52. As to the second element,

the record showed the investigator reviewed mileage logs and pointed to a specific law that he

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believed the officer violated: misuse of a state vehicle.       See id. at 852-54.     Under these

circumstances, the court held the jury’s conclusion that the investigator had sufficient

information about the officer’s use of his state vehicle to form a good-faith belief the officer had

violated the law was not so contrary to the overwhelming weight of the evidence that it was

clearly wrong and unjust. Id. at 854.

       In Honerkamp, an environmental services manager for the City of Brenham worked with

the City’s water treatment plant, and many of his projects addressed chlorine levels because the

City had at times experienced problems maintaining the required level of chlorine. Honerkamp,

950 S.W.2d at 763. The City was required by state regulation to maintain at least 0.5 milligrams

of chlorine per liter of water in its water distribution system. Id. at 764. Further, the manager

“understood the state’s drinking water rules to require that the City maintain bacteria test sites in

locations that were representative of drinking water conditions throughout the system. Id. The

manager traveled to Austin and met with Gordon Townsend of the Texas Natural Resource

Conservation Commission. Id. The manager told Townsend he did not believe the City’s

bacteria test sites were not representative of the system. Id. The record showed the manager

pursued the topic by three letters following the meeting. Id. at 765. The court held the evidence

of the exchange between the manager and Townsend at a public meeting supported a finding the

manager reported a violation of law.

       Here, Watson’s allegations merely recite his prediction that completing three gas tests on

a single day in the future might be “unsafe” and “hurried-up.” There is no evidence that Watson

actually completed three gas tests in one day or that doing so would have constituted a “violation

of law” as required by section 554.002(a). His allegations of what might happen did not amount

to a good-faith report of an existing or past violation of law. See City of Elsa v. Gonzalez, 325

S.W.3d 622, 627 (Tex. 2010) (report of belief that laws might be violated in future not good-faith

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report of existing or past violation of law) (citing Lueck, 290 S.W.3d at 885 (noting “prediction”

of possible regulatory non-compliance” in the future does not equate to reporting a violation of

law)); McElyea, 239 S.W.3d at 851-52. Because Watson did not report a violation of law, he

failed to state a claim under the Texas Whistleblower Act. See TEX. GOV’T CODE ANN. §

554.002(a) (West 2012). Accordingly, the trial court did not have subject-matter jurisdiction

over his claim. We sustain DISD’s first issue.

       We reverse the trial court’s judgment and dismiss Watson’s claims for lack of subject-

matter jurisdiction.




120254F.P05                                            /David L. Bridges/
                                                       DAVID L. BRIDGES
                                                       JUSTICE




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                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

DALLAS INDEPENDENT SCHOOL                             On Appeal from the 95th Judicial District
DISTRICT, Appellant                                   Court, Dallas County, Texas
                                                      Trial Court Cause No. DC-08-12298-D.
No. 05-12-00254-CV          V.                        Opinion delivered by Justice Bridges.
                                                      Justices Moseley and Lang-Miers
DOUGLAS WATSON, Appellee                              participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
       This cause is DISMISSED for lack of subject matter jurisdiction.
       It is ORDERED that appellant DALLAS INDEPENDENT SCHOOL DISTRICT
recover its costs of this appeal from appellee DOUGLAS WATSON.


Judgment entered February 28, 2014




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE




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