      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00363-CV



                                  Carolyn Reininger, Appellant

                                                  v.

                   Texas Building and Procurement Commission, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
    NO. D-1-GN-04-002284, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                                           OPINION


               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.


                                    STANDARD OF REVIEW

                Under the traditional standard, a summary-judgment motion is properly granted when

the movant establishes that there are no genuine issues of material fact to be decided and that he

is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez,

819 S.W.2d 470, 471 (Tex. 1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000,

no pet.). In reviewing a summary judgment, we accept as true all evidence favoring the nonmovant,

indulging every reasonable inference and resolving all doubts in the nonmovant’s favor. Nixon

v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant moving for summary

judgment must negate as a matter of law at least one element of each of the plaintiff’s theories of

recovery or plead and prove as a matter of law each element of an affirmative defense. See Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant meets this burden, the

burden shifts to the plaintiff to present evidence raising a fact issue. See id.

                A no-evidence summary judgment is essentially a pre-trial directed verdict, and an

appellate court applies the same legal-sufficiency standard in reviewing a no-evidence summary

judgment. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998,

pet. denied). The appellate court views the evidence in the light most favorable to the non-moving

party, disregarding all contrary evidence and inferences. Id. A no-evidence point will be sustained

when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law

                                                   2
or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence

offered to prove a vital fact is not more than a mere scintilla, or (d) the evidence conclusively

establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997). More than a mere scintilla of evidence exists when the evidence rises to a level

that would enable reasonable and fair-minded people to differ in their conclusions. Id. Less than

a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere

surmise of suspicion. Moore, 981 S.W.2d at 269.

               Because the trial court granted TBPC’s motion without specifying the grounds, the

summary judgment will be upheld if any of the grounds are meritorious. Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).


                               TEXAS WHISTLEBLOWER ACT

               Section 554.002 of the government code prohibits a state or local governmental entity

from terminating or taking other adverse employment 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). An entity is

considered 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.




                                                  3
Id. § 554.002(b). The determination of whether an entity is an appropriate law-enforcement

authority is a question of law. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

                In Needham, the supreme court clarified the standard for determining whether or not

an entity is “an appropriate law enforcement authority” under the whistleblower act. Id. at 318-321.

In that case, the question before the court was whether the Texas Department of Transportation

(“TxDOT”) was an appropriate law-enforcement authority to which an employee may report an

alleged driving-while-intoxicated incident involving a TxDOT employee. Id. at 319. In deciding

the issue, the court noted “it is clearly not enough that a government entity has general authority to

regulate, enforce, investigate, or prosecute.” Id. at 319 (emphasis in original). Rather, the court

observed, the critical inquiry is whether the entity had authority to regulate or enforce the particular

law that the employee reported had been violated. Id. at 320 (emphasis added). Noting that TxDOT

has no authority to regulate or enforce Texas’s driving while intoxicated laws, the Court held that,

as a matter of law, TxDOT was “not an appropriate law enforcement authority under section

554.002(b) for a public employee to report another employee’s violation of Texas’s driving while

intoxicated laws.” Id. at 320.

                The particular law that Reininger identifies in support of her whistleblower claim is

section 404.094 of the government code, which requires “funds collected or received by a state

agency under law” to be deposited in the treasury “at the earliest possible time” but “not later than

the third business day after the date of receipt.” Tex. Gov’t Code Ann. § 404.094(a) (West 2004).

Section 404.094 specifically charges the state auditor’s office, not the comptroller’s office, with the

authority to investigate non-compliance. See id. (“If the state auditor finds that an agency has not



                                                   4
complied with this subsection, . . . .”) (emphasis added). Accordingly, we hold that, as a matter of

law, the comptroller’s office is not an appropriate law-enforcement authority under section

554.002(b) for reporting a violation of section 404.094.

                Nevertheless, Reininger may still obtain whistleblower act protection if she in good

faith believed that the comptroller was an appropriate law-enforcement authority as defined

in section 554.002(b). In Needham the supreme court defined “good faith” for purposes of section

554.002(b) to mean: “(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.” Id. at 321.

                Here, the summary-judgment evidence shows that Reininger first emailed the

comptroller’s office asking for “written documentation or legal [c]ite that prohibits the commingling

of state and private company funds or requirement that all funds collected for sale of state goods

be directly deposited to State Treasury.” In response, a representative of the comptroller’s office

emailed Reininger an electronic version of section 404.094 of the Texas Government Code. The text

of that provision, again, explicitly states that it is the state auditor who has the authority to determine

noncompliance: “If the state auditor finds that an agency has not complied with this subsection, the

state auditor shall make an estimate of any resulting financial loss to the state, . . . and report

the amount to the legislative audit committee, the governor, and the comptroller.” Tex. Gov’t Code

Ann. § 404.094(a) (emphasis added). In fact, it was undisputed that the state auditor had pre-

approved the very procedure Reininger complained of. The summary-judgment evidence also



                                                    5
established that Reininger had 31 years’ experience in the accounting field, including 19 years’

experience in government accounting, three of which were spent working as a financial analyst at

the comptroller’s office.

                  After receiving the text of section 404.094, Reininger proceeded to send additional

emails to the comptroller’s office accusing TBPC personnel of violating the law. Given her

experience and the text of section 404.094 she was furnished, we conclude, guided by Needham, that

there is no evidence that Reininger could have believed in good faith that the comptroller’s office

was an appropriate law-enforcement authority for purposes of reporting TBPC’s alleged violation

of section 404.094. The district court did not err in granting TBPC’s summary-judgment motion on

this ground.


                                           CONCLUSION

                  We need not reach Reininger’s challenges to TBPC’s other summary-judgment

grounds. Provident Life & Accident Ins. Co., 128 S.W.3d at 216.1 We affirm the judgment of the

district court.




        1
          We also need not address a cross-point that TBPC raised contending that the district court
abused its discretion in considering what it argues is Reininger’s late-filed summary-judgment
evidence. In another “cross-point,” TBPC urges that the district court erred by not also granting a
plea to the jurisdiction that TBPC had asserted challenging whether Reininger had pled a claim
within the whistleblower act. TBPC’s plea challenged the same elements of Reininger’s
whistleblower claim that it attacked in its summary-judgment motion, but focused only on
Reininger’s pleadings and did not attach evidence. As TBPC is seeking to modify the district court’s
judgment, it would ordinarily be required to file a notice of appeal to raise this contention. See
Tex. R. App. P. 25.1(c). In any event, we cannot conclude that the district court would have erred
in overruling TBPC’s jurisdictional challenge to Reininger’s pleadings.

                                                   6
                                          __________________________________________

                                          Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 3, 2008




                                             7
