                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-13-00244-CV

TEXAS DEPARTMENT OF AGING AND
DISABILITY SERVICES,
                                                              Appellant
v.

LEEANN HUSE,
                                                              Appellee


                            From the 77th District Court
                             Limestone County, Texas
                              Trial Court No. 30,095-A


                            MEMORANDUM OPINION


       The Texas Department of Aging and Disability Services (DADS) appeals from the

trial court’s order denying its plea to the jurisdiction. We reverse the trial court’s order.

                                     Background Facts

       Lee Ann Huse was employed as a director of the Mexia State Supported Living

Center. The United States Department of Justice filed suit against the State of Texas in

the United States District Court for the Western District of Texas concerning the care of
residents in the State facilities. The United States, the State of Texas and DADS entered

into a Settlement Agreement on behalf of each of its state mental retardation facilities,

including the Mexia facility. On March 22, 2010, Huse claims that she made a report

that her employer had not complied with the Settlement Agreement. Huse was

terminated from her employment on May 4, 2010.

        Huse initiated a grievance to contest the termination, and the Texas Health and

Human Services Commission Appeals Division agreed with the decision to terminate

Huse’s employment.         Huse filed suit against DADS alleging improper termination

under the “Whistle Blower Act” and seeking “Review of Employment Discharge

Decision and Retaliatory Discharge.” DADS filed a plea to the jurisdiction, and the trial

court denied the plea.

                                     Plea to the Jurisdiction

       In the sole issue, DADS argues that the trial court erred in denying its plea to the

jurisdiction. The State and other 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). A statute waives immunity from suit, immunity from

liability, or both. Id. Sovereign immunity from suit defeats a trial court's subject matter

jurisdiction and thus is properly asserted in a plea to the jurisdiction. Texas Department

of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a court has

subject matter jurisdiction is a question of law. Id.


Texas Department of Aging and Disability Services v. Huse                            Page 2
       DADS contends that Huse’s claims are barred by sovereign immunity for which

she has failed to establish any waiver. 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.

TEX. GOV’T CODE ANN. § 554.0035 (West 2012).                The standard for a "violation of this

chapter" appears in Section 554.002. State v. Lueck, 290 S.W.3d at 881. Section 554.002

provides:

       (a) A state or local 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.

       (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 (West 2012). The elements of Section 554.002(a) can be

considered as jurisdictional facts when it is necessary to resolve whether a plaintiff has

alleged a violation under the Act. State v. Lueck, 290 S.W.3d at 881.



Texas Department of Aging and Disability Services v. Huse                                  Page 3
       Huse was required to show that she in good faith: 1) reported a violation of law,

2) to an appropriate law enforcement authority. “Law” as used in Section 554.002(a) is

defined as:

               (A) a state or federal statute;
               (B) an ordinance of a local governmental entity; or
               (C) a rule adopted under a statute or ordinance.

TEX. GOV’T CODE ANN. § 554.001(1) (West 2012).

       In her pleadings, Huse states that she “made a good faith report that her

employer had not complied with the Settlement Agreement (the “Agreement”) entered

into between the United States of America (the “United States”) and the State of Texas

and the Texas Department of Aging and Disability Services (“DADS”), on behalf of each

of its state mental retardation facilities State of Texas which included her facility, Mexia

State School.”      The Settlement Agreement is not a “law” as defined in Section

554.001(1). It is an agreement between the United States and the State of Texas. The

Settlement Agreement by its terms was a voluntary effort by the State to meet the

concerns of the Department of Justice and to avoid costly litigation. Huse did not report

a violation of “law” as contemplated by the Whistleblower Act.

       However, an actual violation of law is not required by the Whistleblower Act,

but rather a good faith belief that a violation of law has occurred. Good faith in the

whistle blower context 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


Texas Department of Aging and Disability Services v. Huse                             Page 4
employee's training and experience. Wichita County, Texas v. Hart, 917 S.W.2d 779, 884

(Tex. 1996). Huse alleges in her pleadings that she reported a violation of the Settlement

Agreement. Huse was a long time employee of the Mexia facility and was aware of her

duty to report violations of law. The record shows that she was familiar with the

Settlement Agreement and that she instructed her employees on the terms of the

Settlement Agreement. The record does not support a finding that Huse believed she

was reporting a violation of law rather than a violation of the Settlement Agreement.

       In her petition, Huse claims that she made the report to “Dr. Alan Harchik, an

appropriate law enforcement authority designated as a monitor under the

‘Agreement’.” Section 554.002(b) requires that to be an appropriate law enforcement

authority, Dr. Harchik must be “a part of a state or local governmental entity or of the

federal government…” TEX. GOV’T CODE ANN. § 554.002(b) (West 2012). The Settlement

Agreement is clear that the “monitor” is not a part of a state or local governmental

entity or of the federal government.              The Settlement Agreement provides that

“monitor” “shall have full authority to assess, review, and report independently on the

Facility's implementation of and compliance with the provisions of the Agreement and

may offer recommendations to aid the Facility in achieving compliance.” Therefore,

even if Huse did report a violation of law, Dr. Harchik is not an appropriate law

enforcement authority to whom such a report should be made. State v. Lueck, 290

S.W.3d at 885. Huse read the Settlement Agreement and was familiar with its terms


Texas Department of Aging and Disability Services v. Huse                           Page 5
which expressly provides that Dr. Harchik is not authorized to enforce the Settlement

Agreement, but rather may offer recommendations. The record does not support a

finding that Huse in good faith reported a violation of law to an appropriate law

enforcement authority.

       The Section 554.002(a) elements must be included within the pleadings so that

the court can determine whether they sufficiently allege a violation under the Act to fall

within the Section 554.0035 waiver.          See State v. Lueck, 290 S.W.3d at 884. Huse’s

pleadings affirmatively demonstrate that she did not allege a violation under the

Whistleblower Act. See State v. Lueck, 290 S.W.3d at 885. We sustain DADS sole issue

on appeal.

                                            Conclusion

       We reverse the trial court’s denial of the plea to the jurisdiction and dismiss the

cause for lack of jurisdiction.




                                              AL SCOGGINS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed & Dismissed
Opinion delivered and filed May 8, 2014
[CV06]




Texas Department of Aging and Disability Services v. Huse                           Page 6
