      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00743-CV



                                  Arthur J. Hopkins, Appellant

                                                  v.

                    Texas Commission on Environmental Quality, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
   NO. 97-06616, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


            This is an appeal from the granting of judgment non obstante veredicto (JNOV) after

a jury award to a plaintiff in a whistleblower case. See Tex. Gov’t Code Ann. §§ 554.001-.010

(West 2004). Arthur J. Hopkins sued his former employer, the Texas Commission on Environmental

Quality,1 alleging that he was terminated from his position as a geologist in retaliation for reporting

the misconduct of fellow employee Steve White. The case was tried to a jury, which found in favor

of Hopkins and awarded damages of $704,000 and attorney’s fees of $80,000. The district court,

however, granted JNOV and entered a take-nothing judgment. Because Hopkins presented no




       1
         Texas Commission on Environmental Quality was formerly known as the Texas Natural
Resource Conservation Commission. See 30 Tex. Admin. Code § 3.2(8) (West 2005) (changing
name as of September 1, 2002).
evidence of a good faith report of a violation of law to an appropriate law enforcement authority, we

affirm the district court’s judgment.


                                  FACTUAL BACKGROUND

            Arthur Hopkins is a geologist who was employed by the Commission for more than

sixteen years. Hopkins was assigned to the surface casing unit, which reviews applications to drill

or reenter oil or gas wells. Hopkins would review geologic information from the designated area and

would issue a recommendation, in letter form, stating the location of usable-quality groundwater and

the required measures for its protection.

            The surface casing unit was responsible for issuing recommendations for wells across

the entire state. The unit was divided into four geographic sectors. Hopkins was assigned to south

Texas, White to east Texas, John Estep to north Texas, and Jack Oswald to west and central Texas.

Each geologist was also assigned to work as “back up” for one of the other areas. From time to time,

it was necessary for the geologists to handle issues and recommendations involving all areas of the

state. Each geologist was responsible for issuing between four and five thousand recommendations

a year.

            As early as 1994, Hopkins began to complain to superiors about the quality of his co-

worker White’s recommendations. Specifically, Hopkins noticed that White was not researching

the location of water in making recommendations and was simply relying on the computer to

automatically generate a response. He also found numerous errors in White’s work that were not

related to reliance on the computer. At trial, Hopkins discussed examples of White’s various errors

and testified that White’s erroneous recommendations numbered at least in the hundreds. He

                                                 2
emphasized that these erroneous recommendations created a risk for polluting drinking water in the

state. Other geologists in the unit confirmed the poor quality of White’s work.

            Hopkins initially reported the problem to his immediate supervisor, Phil Carter, and to

the other geologists in the surface casing unit. He also reported the problem to his friend Steve

Wiley, who was a supervisor in the water well drillers section. In March 1995, Hopkins reported

White’s erroneous recommendations to Carter’s supervisor, Mary Ambrose. Carter also relayed the

problem to Steve Musik, manager of ground water assessment. In response, Hopkins was asked to

monitor White’s work. Hopkins testified that he reported fifty or sixty erroneous recommendations

by White between March and September 1995. White was then placed on a performance

improvement plan in an attempt to address the problem.

            Hopkins also alleged that White had a history of harassing women at the Commission.

Hopkins testified that White confided in him about his broken relationship with co-worker Irene

Ritter and that Ritter complained to Hopkins about White’s behavior. In early summer 1995, Hopkins

secretly tape-recorded a conversation in which White discussed, in explicit detail, his sexual

relationship with Ritter.2 Within days of making the tape, Hopkins mentioned it to his friend Wiley,

who was Ritter’s supervisor. Hopkins testified that he witnessed White following Ritter around the

office and recalled a conversation he had with Ritter and co-worker Mae Medearis in which Ritter

expressed her frustration that White “won’t leave me alone.” Medearis testified about the incident

in greater detail. She recounted that she was at her desk when Ritter rushed in “aggravated and


       2
          There is some dispute as to the circumstances of the recording. Hopkins testified that the
tape was made while walking from the office to the parking lot. An internal Commission
investigation concluded that the conversation took place either in Hopkins’s or White’s cubicle.

                                                 3
agitated” and exclaimed that White had been following her and was nearby. Medearis confirmed that

Hopkins also came by the door and overheard Ritter soon after the incident. Hopkins later reported

White’s harassment of Ritter to Carter, who was the head of the surface casing unit. Hopkins also

told his friend Wiley.

            Hopkins presented evidence at trial that White sexually harassed other women at the

office. Jan Giessregan testified that she worked closely with the surface casing unit as a private

consultant. She stated that White would stare at her, make comments about her breasts, and even

called her office a couple of times to ask her out. Giessregan reported White’s improper behavior to

Hopkins, but did not complain to anyone else for fear that White would retaliate by delaying her

clients’ applications. Giessregan testified that her secretary suffered similar mistreatment from White.

            In January 1996, White made his own complaint against Hopkins. White sent documents

that he obtained from Hopkins’s cubicle to the Travis County District Attorney’s office and alleged

that Hopkins was using state property to publish a newsletter on roller pigeons.3 Hopkins testified

that this was around the time that he and Carter met with White to discuss his poor performance.

When he was confronted about errors in his recommendations, White responded, “I have an ace up

my sleeve.” Following White’s complaint against Hopkins, a Commission investigator witnessed

Hopkins using his State computer for personal purposes. Hopkins received a written reprimand dated

March 13, 1996, noting the investigator’s observations of Hopkins’s personal use of his computer and

Hopkins’s admission of personal use on one occasion. On March 20, Hopkins was placed on




       3
          The roller pigeon is a breed of pigeon known for its ability to perform backward
somersaults in mid-flight. Roller pigeons are widely bred by hobbyists for competition.

                                                   4
disciplinary probation for one year and suspended without pay for two weeks. The memorandum

documenting the probation and suspension listed a number of specific occasions in 1994 and 1995

when Hopkins had used state computers and printers to generate personal correspondence and his

newsletter. At trial, Hopkins denied ever having used Commission equipment to publish his

newsletter.

              While Hopkins served his two-week suspension, White was responsible for the

recommendations in Hopkins’s assigned area. Hopkins determined that approximately one fourth of

the recommendations made by White in his absence were inaccurate. Hopkins again complained to

his supervisor Carter.

              White continued to make comments about Ritter to Hopkins. Hopkins again mentioned

to Wiley the secret tape of White relating details of his sexual relationship with Ritter, intimating that

it was bad. Wiley testified that he decided to tell Ritter about the tape and suggested that she listen

to it. He told her that if she was offended, they could bring the matter up with the personnel office.

Ritter testified that she also learned of the tape from two other Commission employees. Ritter

testified that Hopkins eventually played the tape for her in a Commission conference room. Hopkins

told her that she could use the tape in a sexual harassment complaint against White. Ritter stated that,

after she listened to part of the tape, Hopkins turned it off and explained that there was more. Ritter

told Hopkins that she didn’t want to hear any more and that she wanted the tape. Ritter then left the

room without taking the tape. She testified that it was extremely stressful and sickening to go back

to work knowing that her co-workers were aware of the contents of the tape. Hopkins confirmed this




                                                    5
meeting but testified that he left the room while the tape was still playing and that Ritter did not ask

to keep it.

              After Ritter reported listening to the tape, the Commission conducted an investigation.

Hopkins could not locate the tape during the internal Commission investigation, and it was not

produced at trial. Throughout the disciplinary investigation, Hopkins complained to investigators and

his superiors about the quality of White’s work and about his sexual harassment of Ritter. As a result

of the investigation, the Commission disciplined those employees who knew about the tape but failed

to report it to the human resources division as required by the agency’s sexual harassment policy.

Hopkins was terminated for his misconduct in making the tape and playing it to Ritter.

              Hopkins brought suit under the whistleblower act alleging that he was terminated in

retaliation for reporting White’s professional and personal misconduct. The case was tried before a

jury. The district court granted a directed verdict as to retaliation for reporting White’s sexual

harassment and submitted the rest of Hopkins’s whistleblower claim to the jury. The jury determined

that the Commission retaliated against Hopkins for reporting what he in good faith believed to be a

violation of law to an appropriate law enforcement authority. The jury found that Hopkins had

suffered a loss of earning capacity in the past in the amount of $154,000 and in the future in the

amount of $250,000, as well as mental anguish in the past in the amount of $300,000. Finally, the

jury found that a reasonable and necessary fee for Hopkins’s attorney was $80,000. In total, Hopkins

was awarded $784,000. The district court granted the Commission’s first motion for JNOV in part,

reducing the award to $240,000 in light of the statutory cap on damages. Later, the district court




                                                   6
granted a second motion for JNOV and signed a take-nothing judgment. Hopkins appeals and asks

us to render judgment in his favor.


                                            DISCUSSION

Final Judgment

            Hopkins first contends that the district court’s February 22, 2002 order granting in part

and denying in part the Commission’s first motion for JNOV constituted a final order in the case. As

such, Hopkins argues that the district court lacked jurisdiction to enter a take-nothing judgment six

months later. The supreme court has discussed the requirements for a final judgment following a trial

on the merits. See Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003); Lehmann v. Har-Con, 39

S.W.3d 191, 198-99 (Tex. 2001). “When a judgment, not intrinsically interlocutory in character, is

rendered and entered in a case regularly set for a conventional trial on the merits,” it will be presumed

final for purposes of appeal. Moritz, 121 S.W.3d at 718-19; see Lehman, 39 S.W.3d at 199. If a

judgment disposes of all issues in the case, it is not interlocutory. See Moritz, 121 S.W.3d at 719.

Here, the order on the Commission’s motion for JNOV does not purport to be a final judgment but

does deny all of the Commission’s objections to the jury’s verdict raised in the JNOV. However, the

district court’s order does not contain an award of damages, interest, costs, or attorney’s fees. Nor

does the order make reference to any document listing these awards.              Thus, the order was

interlocutory in nature and the presumption of finality does not apply. See Moritz, 121 S.W.3d at 718-

19. Furthermore, the supreme court has stated that the determination of finality is a broad inquiry:




                                                   7
       Finality must be “resolved by a determination of the intention of the court as gathered
       from the language of the decree and the record as a whole, aided on occasion by the
       conduct of the parties.”


Id. at 203 (quoting Park Place Hosp. v. Estate of Milo, 920 S.W.2d 274, 277 (Tex. 1996)). The

language of the order leaves no impression that the court intended the order to be anything but a

ruling on the Commission’s motion for JNOV. The court clearly stated this intent on the record:


       Well, Mr. Hopkins, you haven’t gotten me a form of judgment that I can sign, and
       now here’s Mr. Thompson back with a stronger motion than he had last time. What
       do you have to say about that?


In light of the specific language in the order granting in part and denying in part the Commission’s

motion for JNOV and the record’s clear reflection of the court’s contrary intent, we hold that the

district court’s order dated February 22, 2002, was not a final judgment. See id. We overrule

Hopkins’s first issue.


Directed Verdict

            In issues eight through eleven, Hopkins raises four complaints regarding the district

court’s grant of directed verdict on his claim that he was retaliated against for reporting White’s

sexual harassment. Hopkins does not argue the merits of these issues in any of the pleadings before

this court. He merely includes them in the issues presented and recites them again in the body of his

opening brief:


       Issue 8      Where a public employee reports multiple violations of law, some of
                    which implicate the provisions of the Human Rights Act and others of
                    which do not, the employee suffers retaliation for having made such

                                                 8
                    reports, and prior to filing suit he does not comply with the prerequisites
                    of the Human Rights Act, is the employee precluded from seeking relief
                    under the Whistleblower Act?

       Issue 9      Where a public employee reports multiple violations of the law to a
                    single law enforcement authority, the law enforcement authority to
                    which the employee made the reports is an appropriate law enforcement
                    authority as to some reports and not others, and the employee does not
                    make separate reports to additional appropriate law enforcement
                    authorities, does the employee lose the protections of the Whistleblower
                    Act as to the additional reports made to the single law enforcement
                    authority on the ground that such authority is not an appropriate law
                    enforcement authority to receive such reports or, does the employee,
                    having triggered the protections of the Whistleblower Act, become
                    entitled to its protections as [to] each of his reports?

       Issue 10     Did the trial court err when it granted directed verdict for the
                    commission as to Hopkins’ whistleblower reports pertaining to the
                    harassment, sexual harassment, stalking or official oppression of Irene
                    Ritter, Janet [Odie], and Barbara Simmons?

       Issue 11     Did the trial court err when it instructed the jury not to consider
                    Hopkins’ whistleblower reports pertaining to harassment, sexual
                    harassment, stalking or official oppression of Irene Ritter, Janet [Odie],
                    and Barbara Simmons when answering Question One of the Court’s
                    Charge?


In order to maintain a point on appeal, an appellant must provide a discussion of the facts and

authorities relied upon. Heard v. Moore, 101 S.W.3d 726, 730 (Tex. App.—Texarkana 2003, pet.

denied) (citing Ramsey v. Reagan, No. 03-01-582-CV, 2003 Tex. App. LEXIS 276 (Tex.

App.—Austin February 28, 2003, no pet.)); see also Tex. R. App. P. 38.1(h). A failure to discuss

relevant facts and authority results in a waiver of the point on appeal. Dallas Cent. Appraisal Dist.

v. Tech Data, 930 S.W.2d 119, 121 (Tex. App.—Dallas 1996, writ denied); see also Horton v.

Horton, 965 S.W.2d 78, 88 (Tex. App.—Fort Worth 1998, no pet.) (“By raising an issue and failing



                                                  9
to present any argument or authority on that issue, the party waives that issue.”). Because Hopkins

has inadequately briefed his issues eight through eleven, we hold that he has waived those issues.


JNOV on Whistleblower Claim

               In issues two through seven, Hopkins challenges the district court’s grant of the

Commission’s second motion for JNOV and the resulting take-nothing judgment. Specifically,

Hopkins contends that there was legally sufficient evidence to uphold the jury’s verdict. A trial court

may grant a JNOV if there is no evidence to support one or more of a jury’s findings on issues

necessary to liability. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). In reviewing the trial

court’s JNOV, we credit all favorable evidence that reasonable jurors could believe and disregard

all contrary evidence except that which the jury could not ignore. City of Keller v. Wilson, 48 Tex.

Sup. J. 848, 2005 Tex. LEXIS 436, at *74 (Tex. June 10, 2005); see also Ancira Enters., Inc. v.

Fisher, No. 03-03-498-CV, 2005 Tex. App. LEXIS 4708, at *7 (Tex. App.—Austin, June 16, 2005,

no pet. h.).

               To establish his claim under the whistleblower act, Hopkins must demonstrate that

he was terminated by the Commission in retaliation for making a good faith report of a violation of

law by a public employee, White, to an appropriate law enforcement authority. See Tex. Gov’t Code

Ann. § 554.002(a); Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 317 (Tex. 2002). The

Commission argues first that Hopkins did not present evidence of a good faith report of a violation

of law. In the alternative, the Commission contends that the report was not made to an appropriate

law enforcement authority. A good faith report of a violation of law means that “(1) the employee

believed that the conduct reported was a violation of the law, and (2) the employee’s belief was

                                                  10
reasonable in light of the employee’s training and experience.” Needham, 82 S.W.3d at 320 (quoting

Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)). A report is made to an appropriate law

enforcement authority if the authority is part of a state or local government entity that the employee

in good faith believes is authorized to (1) regulate under or enforce the law alleged to be violated or

(2) investigate or prosecute a violation of criminal law. Tex. Gov’t Code Ann. § 554.002(b); see

Duvall v. Tex. Dep’t of Human Servs., 82 S.W.3d 474, 479 (Tex. App.—Austin, 2002, no pet.). An

employee has a good faith belief that a report is made to an appropriate law enforcement authority

if:


        (1) the employee believed the government entity was authorized to (a) regulate
            under or enforce the law alleged to be violated, 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. The authority to take remedial or disciplinary action with regard to an

employee’s misconduct does not make an agency an appropriate law enforcement authority under

the statute. See id.; Duvall, 82 S.W.3d at 481-82.

                We will first examine whether Hopkins’s report of White’s erroneous

recommendations constitutes a good faith report of a violation of law. Hopkins must show either

(1) that he reported a violation of the law or (2) that he believed that White’s conduct was a violation

of the law and that belief was reasonable in light of Hopkins’s training and experience. See

Needham, 82 S.W.3d at 320.




                                                  11
                   Hopkins contends that he reported several actual violations of the law committed by

White. He relies primarily on former section 26.2121 of the water code. See Act of September 1,

1991, 72d Leg., 1st C.S., ch. 3, § 8.22(b), 1991 Tex. Gen. Laws 91, 92, repealed by Act of

September 1, 1997, 75th Leg., R.S., ch. 1072, § 60, 1997 Tex. Gen. Laws 4142 (former water code

section 26.2121).4 This provision of the water code established criminal penalties for intentional or

knowing discharges of pollutants or for intentionally or knowingly making false statements on

certain documents. See id. § 26.2121(a), (g), (m). First, we note that there was no evidence in the

record that any of White’s erroneous recommendations actually resulted in the discharge of

pollutants. Therefore, White did not subject himself to criminal or administrative sanctions for

causing the discharge of pollutants. See id. § 26.2121(a), (g).

                   Our determination of whether White’s erroneous recommendations amounted to

prohibited false statements requires an examination of the language of the statute. Subsection (m)

states:


          A person commits an offense if the person intentionally or knowingly makes or
          causes to be made a false material statement, representation, or certification in, or
          omits or causes to be omitted material information from, an application, notice
          record, report, plan, or other document, including monitoring device data, filed or
          required to be maintained by this chapter, or by a rule, permit, or order of the
          appropriate regulatory agency.


Id. § 26.2121(m). Even if the information contained in White’s recommendations was false, the

recommendations must have been “required to be maintained” or “filed” with the Commission to




          4
              For convenience, we will cite to the former water code provision.

                                                   12
be covered under this section of the statute. See id. All of the documents specifically mentioned by

subsection (m) refer to materials provided to the Commission, not documents generated by the

Commission. Hopkins focuses on the statute’s use of the term “maintained.” He argues that the

state records management law in effect at the time would require the Commission to retain White’s

recommendations, and, therefore, they are “maintained” for the purposes of subsection (m).

However, in the context of regulation by the Commission, the requirement that records be

“maintained” imposes a duty on the regulated entity to maintain records so that the Commission or

another agency may review them. See, e.g., 30 Tex. Admin. Code § 111.127(b) (2005) (Tex.

Comm’n Envtl. Quality) (owner or operator of incinerator must maintain records of testing results

for period of two years and make them available upon request); id. § 115.446(8) (owner or operator

of offset lithographic printing press shall maintain records for two years and make them available

upon request); id. § 115.326 (owner or operator of petroleum refinery must maintain log of leaks of

volatile organic compounds for five years and make it available upon request). In light of the

wording of the statute and the consistent use of the term “maintain” by the Commission, we cannot

conclude that White’s recommendations were “required to be maintained” as anticipated by

subsection (m).

               Hopkins also directs us to a number of other statutes cited in pleadings before the

district court. Many of these are broad statements of the Commission’s responsibilities in protecting

the ground water that have no relevance to White’s specific erroneous recommendations. Other laws

that govern the Commission’s response to actual pollution are not implicated because there is no

evidence that White’s erroneous recommendations actually caused any pollution. Additionally,



                                                 13
Hopkins cannot rely on White’s misconduct as a violation of laws prohibiting the pollution of water

because he did not report these alleged violations to the appropriate law enforcement authority. See

Tex. Gov’t Code Ann. § 554.002(a). We acknowledge that the Commission has broad and vital

enforcement responsibility pertaining to pollution. However, Section 26.131 of the water code states

that the Railroad Commission of Texas is solely responsible for the prevention of pollution of

subsurface water resulting from the activities associated with oil and gas wells. Hopkins’s co-

workers in the surface casing unit testified that they understood the Railroad Commission, not the

Texas Commission on Environmental Quality, to have sole responsibility for responding to pollution

of the water resulting from oil and gas wells. There was evidence that the Railroad Commission

reviewed the surface casing unit’s recommendations for accuracy. Even the recommendation

form—which Hopkins participated in designing—states, “Approval of well completion methods for

protection of this ground water falls under the jurisdiction of the Railroad Commission of Texas.”

Based on this record, we conclude that there was no evidence that a reasonable geologist with

Hopkins’s training and experience could have held a good faith belief that he should report the threat

to the ground water resulting from White’s inaccurate surface casing recommendations to the Texas

Commission on Environmental Quality when the Railroad Commission was widely known to be the

appropriate law enforcement agency responsible for addressing pollution of the ground water

resulting from oil and gas wells.5 See Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex.




       5
         We note that our conclusion might be entirely different if a lay person, unaware of the
Railroad Commission’s enforcement role, had reported pollution from oil and gas production to the
Commission.

                                                 14
2002). In sum, Hopkins presented no evidence that White’s conduct, in making erroneous surface

casing recommendations, violated any law that the Commission was entrusted to enforce.

                 However, a person need not prove that an actual violation of law occurred to obtain

relief under the whistleblower act. See Llanes v. Corpus Christi, 64 S.W.3d 638, 643 (Tex.

App.—Corpus Christi 2001, pet. denied). Hopkins need only demonstrate a good faith belief that

the conduct reported was a violation of law and that his belief was reasonable. See Needham, 82

S.W.3d at 320. In his testimony, Hopkins did not identify any specific law that he believed had been

violated. Rather, he stated his concerns about pollution and made general assertions that incorrect

information on recommendations would lead to liability:


          I felt the groundwater was in danger of being contaminated. I also felt that we were
          totally liable for these mistakes. From the time I went to work for surface casing in
          1980, it was preached to us, there was memos that came down that you could be sued
          and the State was not going to back you, and that concerned me. And they also said
          the State, the operator and the Railroad Commission were also liable.


Hopkins explained that he believed the potential liability was from a suit by affected landowners.

He made no mention of criminal or administrative penalties. His own explanation for why he

reported White’s inaccurate recommendations reveals that he did not anticipate law enforcement

action:


          Q. Were you trying . . . to get Mr. White fired?

          A. No. All I really cared about is getting it—stop him, make him go file
             logs,do anything but don’t let him make any more recommendations.
             Ididn’t care what he did. I didn’t care if he stayed there and [sat] in the
             closet. Just don’t let him work on any more recommendations.




                                                   15
Hopkins did respond to a question from his counsel in which he characterized White’s erroneous

recommendations as a violation of law:


       Q. Did you express any concern to Mr. Wiley that there—that what was going
          on could involve a violation of law?

       A. Mr. Wiley and I knew each other for a long time, and that was talked about
          in his presence way prior to any of—that there could be a violation of law
          about incorrect surface casing recommendations way prior to the time
          that—that I made my complaint.


But Hopkins never explained what he meant by a violation of law, and on the next page of the

transcript he again discussed his fear that the Commission was liable for White’s erroneous

recommendations and that it could be sued.

               In reviewing the district court’s JNOV, we credit all favorable evidence that

reasonable jurors could believe and disregard all contrary evidence except that which the jury could

not ignore. See City of Keller, 2005 Tex. LEXIS 436, at *74. Although Hopkins did assert that

White’s recommendations were “a violation of law,” we must view this assertion in the context in

which it was made. See id. at *16-17. Hopkins’s blanket assertion that there was a violation of law

cannot be stripped from its context in a way that seems to support the verdict when his testimony as

a whole does not. See id. Viewing Hopkins’s testimony as a whole, he clearly indicated that he

reported White’s erroneous recommendations because “White was not doing a very good job

protecting the groundwater” and because of his concern that he and the Commission could be sued

if there was pollution resulting from the recommendations. As such, we find that there is no

evidence in the record that Hopkins made a good faith report of a violation of law to an appropriate

law enforcement authority as defined under the whistleblower act. See Needham, 82 S.W.3d at 320.


                                                16
We overrule Hopkins’s issues two through seven. Because we hold that the district court properly

entered a take-nothing judgment, we need not consider Hopkins’s issues twelve through fourteen

(damages and attorney’s fees).


Discovery Requests

               In issues fifteen and sixteen, Hopkins contends that the district court erred by

preventing Hopkins from discovering copies of White’s erroneous recommendation letters. All that

was requested was additional evidence that White made a large number of erroneous

recommendations and that the Commission was aware of the problem. In light of our determination

that Hopkins’s report of White’s erroneous recommendations did not constitute a good faith report

of a violation of law to an appropriate law enforcement authority, additional evidence of White’s

recommendations could not have caused the rendition of an improper judgment. See Tex. R. App.

P. 441.(a)(1). Accordingly, we need not consider whether it was error to deny Hopkins the requested

discovery. We overrule Hopkins’s fifteenth and sixteenth issues.


Deemed Admissions

               In issues seventeen and eighteen, Hopkins contends that the district court erred by

failing to deem certain requests for admissions to be admitted because the Commission’s response

was untimely. This case was originally set for trial on June 4, 2001. After a hearing held on May

29, the district court reset the trial for October, struck some of Hopkins’s requests for admissions,

entered a scheduling order, and sanctioned Hopkins for untimeliness in prosecuting the case. At that

hearing, the trial court granted the Commission “an extra thirty days” to respond to Hopkins’s

remaining requests for admissions. The scheduling order announced on May 29 was not signed until


                                                 17
August 16, at which time the Court altered the language on the order setting the due date for the

Commission’s response as July 2. Hopkins complains that the order improperly extended the

deadline for the Commission’s response to his requests for admissions an extra four days. The

Commission avers that the matter was discussed in correspondence between the parties and that the

issue was resolved at a hearing held on August 16. Hopkins has not included the Commission’s

response, the correspondence, or the transcript of the August 16 hearing in the record. On this scant

record, we cannot conclude that the trial court abused its discretion in allowing the Commission four

extra days to respond to Hopkins’s requests for admissions. We overrule Hopkins’s seventeenth and

eighteenth issues.


Spoliation of Evidence

               In issues nineteen and twenty, Hopkins requests that this Court impose sanctions

against the Commission for failing to retain the audiotapes of his grievance hearing and documents

showing White’s false statements. He explains that the documents and tapes contained favorable

evidence that White was making false statements on recommendations and that the Commission was

aware of Hopkins’s reports of White’s misconduct as well as White’s sexual harassment. Because

Hopkins has not preserved error with regard to the directed verdict on the sexual harassment

elements of his claim, and because we have determined that Hopkins’s reports of White’s erroneous

recommendations were not good faith reports of a violation of law, the absence of the complained

of evidence could not have caused the rendition of an improper verdict. See Tex. R. App. P.

44.1(a)(1). We overrule Hopkins’s issues nineteen and twenty.




                                                 18
                                          CONCLUSION

               For the reasons set forth above, we overrule all of Hopkins’s issues and affirm the

district court’s take-nothing judgment.




                                             __________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: August 11, 2005




                                               19
