AFFIRM; and Opinion Filed June 15, 2016.




                                         S    In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-15-01078-CV

                                     IN RE JEREMY LIEBBE

                       On Appeal from the 162nd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-15-01702

                              MEMORANDUM OPINION
                          Before Justices Lang-Miers, Evans, and Brown
                                    Opinion by Justice Brown
       Jeremy Liebbe petitioned the trial court for an order authorizing presuit depositions of six

current or former employees of the Dallas Independent School District (DISD) and DISD’s

outside counsel to enable him to determine if he had a cause of action against DISD under the

Texas Whistleblower Act. In response, DISD and the individuals asserted that the court lacked

subject matter jurisdiction over the requested discovery. The trial court denied Liebbe’s petition.

In this appeal, Liebbe contends the trial court erred because he presented sufficient evidence to

raise a fact issue about the court’s jurisdiction over his potential claim. For reasons that follow,

we affirm the trial court’s order.

       According to his petition, in 2014, Liebbe worked for DISD as the manager of its

Professional Standards Office. He reported directly to Tonya Grayson, the Executive Director of

Human Capital Management. On July 15, 2014, Liebbe learned Grayson had failed to disclose
her criminal history on her DISD job application. Grayson’s nondisclosure was in violation of a

DISD policy, which provided:

       An applicant may not be employed by the District if he or she fails to disclose on
       the employment application—or when questioned regarding criminal
       convictions—any criminal conviction, crime or deferred adjudication (or similar
       type of decree); or misrepresents any information regarding any such conviction,
       crime, or deferred adjudication (or similar type of decree).

The next day, Liebbe contacted Freddie Jackson, a DISD employee who provided transportation

for DISD Superintendent Mike Miles. Liebbe told Jackson what he had learned about Grayson

and told him he needed to speak to Miles to give him the opportunity to take corrective action.

Jackson agreed to contact Miles and arrange a meeting between Miles and Liebbe. That evening,

Jackson informed Liebbe in a text message that he was waiting for a “return message.”

       The next morning, Grayson was late to a meeting with her subordinates. She explained

she had been on the phone with Miles and Carmen Darville, who was DISD’s Chief of Human

Capital Management and Grayson’s supervisor, about a situation that would involve Liebbe.

Grayson postponed the meeting to meet with Miles and Darville. Liebbe texted Jackson to

inform him that his meeting had been cancelled and he was on his way back to his office.

Jackson replied that he was “with the super now” and would talk to Liebbe later. When Liebbe

arrived at the rescheduled meeting later that morning, he was informed he needed to leave

immediately and see Darville in her office. Darville gave Liebbe a letter informing him he was

being placed on administrative leave. Liebbe was not given a reason for DISD’s action.

       On August 26, 2014, Liebbe filed a written complaint with the Texas Education Agency

reporting potential violations of the education code, the penal code, and the administrative code

he discovered while investigating Grayson’s failure to disclose her criminal history.        On

September 3, 2014, Liebbe filed a similar complaint with the DISD Board of Trustees. Two

days later, Darville’s assistant contacted Liebbe and told him to report to Darville’s office.


                                              –2–
When Liebbe arrived at the district office, a DISD police sergeant escorted him to Darville’s

office. Darville gave Liebbe a letter notifying him that his employment with DISD was being

terminated immediately because a recent investigation had substantiated allegations that he acted

outside the scope of his role as manager of the Professional Standards Office.

        In February 2015, Liebbe filed a verified petition to take presuit depositions to investigate

a potential claim.     Liebbe sought to take the depositions of Miles, Darville, Grayson, and

Jackson, as well as DISD’s Chief of Police, general counsel, and outside counsel. The petition

stated that Liebbe suspected he was placed on administrative leave because of his attempt to

report to Miles Grayson’s failure to disclose her criminal history. Liebbe also suspected he was

terminated because he filed a written complaint with the Texas Education Agency and/or

because he filed a written complaint with the DISD Board of Trustees. Liebbe did not have

sufficient evidentiary support for these allegations and sought the depositions to determine if he

had a cause of action against DISD under the Texas Whistleblower Act.

        DISD and the seven individuals whose depositions Liebbe sought to take objected to

Liebbe’s petition.     Among other things, they asserted that the court lacked subject matter

jurisdiction to order the requested discovery because Liebbe failed to plead facts sufficient to

establish a waiver of DISD’s immunity from suit. After a hearing, an associate judge denied

Liebbe’s petition for presuit discovery. The order stated Liebbe had not established a basis for

concluding his potential whistleblower claim would not be barred by governmental immunity.

Liebbe appealed the associate judge’s order to the trial court. After a de novo hearing, the trial

court affirmed and adopted the associate judge’s order denying Liebbe’s petition to take

depositions before suit. This appeal followed. See In re Jorden, 249 S.W.3d 416, 419 (Tex.

2008) (presuit deposition orders are appealable only if sought from someone against whom suit

is not anticipated).

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       Under rule of civil procedure 202, a person may petition the court for an order

authorizing the taking of a deposition to investigate a potential claim or suit. TEX. R. CIV. P.

202.1(b). However, a party generally “cannot obtain by Rule 202 what it would be denied in the

anticipated action.” In re DePinho, No. 15-0294, 2016 WL 2979797, at *2 (Tex. May 20, 2016)

(quoting In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011)). Thus, for a party to properly obtain

rule 202 presuit discovery, the court must have subject matter jurisdiction over the anticipated

action. Id.

       Liebbe’s petition sought discovery to investigate a potential claim against DISD under

the Texas Whistleblower Act. The whistleblower act protects 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).

In general, school districts are immune from suit and liability unless the legislature expressly

waives governmental immunity. Mullins v. Dallas Indep. Sch. Dist., 357 S.W.3d 182, 185–86

(Tex. App.—Dallas 2012, pet. denied). The whistleblower act waives governmental immunity

when a public employee properly alleges a violation of the act.        TEX. GOV’T CODE ANN.

§ 554.035 (West 2012); State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). Thus, the elements of

a whistleblower claim are jurisdictional when necessary to ascertain whether a plaintiff has

adequately alleged a violation of the act. Leuck, 290 S.W.3d at 884. Whether a trial court has

subject matter jurisdiction is a question of law. Mullins, 357 S.W.3d at 185. We review de novo

whether a plaintiff has set forth facts that affirmatively demonstrate the trial court’s subject

matter jurisdiction. Id.

       Liebbe maintains he properly alleged a violation of the act and thus established that the

trial court had subject matter jurisdiction because he had a good faith belief (1) that Grayson’s

failure to disclose her criminal history was a violation of law and (2) that Superintendent Miles

                                              –4–
was an appropriate law enforcement authority. We begin with the issue of whether Super-

intendent Miles was an appropriate law enforcement authority. For purposes of this discussion,

we will assume without deciding that Liebbe reported a violation of law.

       Under the act, a report is made to an appropriate law enforcement authority if the

authority is a part of a state or local government 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). To be in good faith, an employee’s belief about the authority’s powers must be

reasonable in light of the employee’s training and experience. McMillen v. Tex. Health &

Human Servs. Comm’n, 485 S.W.3d 427, 429 (Tex. 2016). An authority’s power to discipline its

own or investigate internally does not support a good faith belief that the authority is an

appropriate law enforcement authority. Id. The authority must instead have outward-looking

powers. Id. at 429–30 (appropriate authority can include someone within same agency as

whistleblower as long as that person has outward looking law enforcement authority); Pulkrabek

v. Univ. of Tex. Sw. Med. Ctr., No. 05-14-01341-CV, 2016 WL 3004476, at *2 (Tex. App.—

Dallas May 25, 2016, no pet. h.) (mem. op.). For an entity to constitute an appropriate law

enforcement authority under the act, it must have authority to enforce, investigate, or prosecute

violations of law against third parties outside of the entity itself, or it must have authority to

promulgate regulations governing the conduct of such third parties. University of Tex. Sw. Med.

Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013).

       Liebbe argues that Miles was an appropriate law enforcement authority because he was

authorized to enforce the law alleged to be violated by Grayson and did so by terminating her.

This case is similar to Ortiz v. Plano Independent School District, No. 02-13-00160-CV, 2014

WL 24227 (Tex. App.—Fort Worth Jan. 2, 2014, pet. denied) (mem. op.). In that case, school

                                                –5–
teacher Ortiz filed a grievance with the school board against the district’s human resources

director, alleging the director violated provisions of the district’s Employee Standards of

Conduct. Id. at *1. Ortiz sued the district under the whistleblower act after she was placed on

administrative leave. Id. The trial court granted the district’s plea to the jurisdiction. Id.

Similar to Liebbe, Ortiz argued on appeal that the trial court had jurisdiction because the school

board had the power to enforce the standards of conduct. Id. at *2. The court of appeals

disagreed because there was no evidence to show Ortiz had a good faith belief that the board had

authority to enforce the standards of conduct against third parties outside the district or to

promulgate regulations that would govern the conduct of such third parties. Id. The same is true

in this case. Liebbe stated in his petition and accompanying affidavit that his intent in seeking to

inform Miles of Grayson’s nondisclosure was to give Miles the chance to take corrective action.

There is no evidence that Liebbe believed Superintendent Miles had authority to enforce the

district policy outside the school district. See id.; see also Canutillo Indep. Sch. Dist. v. Farran,

409 S.W.3d 653, 655 (Tex. 2013) (school district employee who complained to district officials

about alleged financial improprieties that violated education code and state constitution did not

complain to law enforcement authority under whistleblower act); University of Houston v. Barth,

403 S.W.3d 851, 857–58 (Tex. 2013) (university professor did not report alleged penal code

violations to anyone who could have investigated or prosecuted violations outside the

university). Miles’s authority to regulate conduct within DISD is insufficient to confer law

enforcement authority status. See Gentilello, 398 S.W.3d at 686. As the supreme court stated in

Gentilello, to hold otherwise “would transform every governmental entity that is subject to any

regulation or that conducts internal investigations or imposes internal discipline into law

enforcement authorities under the Act.” Id.




                                                –6–
       Because Liebbe did not establish that Miles was an appropriate law enforcement

authority, he did not properly allege a violation of the whistleblower act. Accordingly, DISD’s

governmental immunity was not waived under the act, and the trial court lacked subject matter

jurisdiction. The trial court properly denied Liebbe’s petition for presuit discovery. In light of

this conclusion, we need not reach Liebbe’s argument that he also had a good faith belief

Grayson had violated a law. We overrule his sole issue.

       We affirm the trial court’s order.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE


151078F.P05




                                               –7–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

IN RE JEREMY LIEBBE                                   On Appeal from the 162nd Judicial District
                                                      Court, Dallas County, Texas
No. 05-15-01078-CV                                    Trial Court Cause No. DC-15-01702.
                                                      Opinion delivered by Justice Brown, Justices
                                                      Lang-Miers and Evans participating.

     In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED.

       It is ORDERED that appellees recover their costs of this appeal from appellant Jeremy
Liebbe.


Judgment entered this 15th day of June, 2016.




                                                –8–
