                                  NO. 12-16-00101-CV

                            IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CURTIS DINGER AND BRIAN SCOTT                   §      APPEAL FROM THE 114TH
BRADLEY,
APPELLANTS

V.                                              §      JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Curtis Dinger and Brian Scott Bradley appeal the trial court’s order granting Smith
County’s plea to the jurisdiction. In a single issue, Dinger and Bradley contend Smith County’s
governmental immunity was waived under the Texas Whistleblower Act. We affirm.


                                         BACKGROUND
       Dinger and Bradley, Whitehouse Police Department officers, were informed that another
officer’s wife may have been sexually assaulted by either the Whitehouse police chief or the
Whitehouse city manager. After conducting an initial investigation, Dinger and Bradley reported
the allegations to the Texas Rangers, the Smith County District Attorney’s Office, and the Smith
County Sheriff’s Office. They asked that these agencies continue the investigation. Dinger and
Bradley were both suspended when the police chief and the city manager learned they had
contacted those agencies.
       At a special meeting, the Whitehouse City Council voted to appoint an acting police chief
and interim city manager. It also voted to authorize an outside third party to investigate whether
Dinger or Bradley violated any city policies or procedures during their investigation. The acting
police chief requested that the Smith County Sheriff’s Office perform the investigation. That
office assigned the matter to Mark Simmons. Simmons found that Bradley had not committed
any violations and that Dinger may have violated four policies or procedures.
        Dinger and Bradley sued the City of Whitehouse (the City) and Smith County under the
Texas Whistleblower Act (the Act). They alleged that Smith County knowingly participated in
the investigation to create “pretext reasons” for Bradley’s and Dinger’s suspensions. Smith
County filed a plea to the jurisdiction alleging that its governmental immunity has not been
waived. The trial court granted the plea and dismissed the case against Smith County. This
interlocutory appeal followed.1


                                       PLEA TO THE JURISDICTION
        Governmental immunity from suit defeats a trial court's subject matter jurisdiction and is
properly asserted in a plea to the jurisdiction. Arnold v. Univ. of Tex. Sw. Med. Ctr. at Dallas,
279 S.W.3d 464, 467 (Tex. App.—Dallas 2009, no pet.). Whether the trial court has subject
matter jurisdiction is a question of law, which we review de novo. Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Dallas Area Rapid Transit v. Carr, 309
S.W.3d 174, 176 (Tex. App.—Dallas 2010, pet. denied). A plaintiff has the burden to allege facts
affirmatively demonstrating the trial court has subject matter jurisdiction. Miranda, 133 S.W.3d
at 226. In determining whether a plaintiff has done so, we construe the pleadings liberally in
favor of the plaintiff and look to the pleader's intent. Miranda, 133 S.W.3d at 226–27; Carr, 309
S.W.3d at 176. We can also consider evidence, and must do so when necessary to resolve the
jurisdictional issue. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Arnold,
279 S.W.3d at 467. If evidence in support of a plea to the jurisdiction negates the existence of
jurisdictional facts as a matter of law, the plea should be granted. City of Waco v. Lopez, 259
S.W.3d 147, 150 (Tex. 2008). However, if a fact issue is presented, the trial court should deny
the plea. Id.
        The Act contains an express waiver of immunity from suit. Specifically, a public
employee who “alleges” a violation of the Act may sue the “employing state or local
governmental entity” for the relief provided by the Act. TEX. GOV'T CODE ANN. § 554.0035
(West 2012); see Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 n.6 (Tex. 2003). In


        1
         An interlocutory appeal is permitted from an order that grants a plea to the jurisdiction brought by a
governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2016).


                                                      2
determining whether a violation has been alleged, we consider whether the factual allegations
would actually constitute a violation of the Act. State v. Lueck, 290 S.W.3d 876, 881 (Tex.
2009). However, a plaintiff need not prove its claim to satisfy the jurisdictional hurdle, and the
burden of proof with respect to the jurisdictional facts does not involve a significant inquiry into
the substance of the claims. Id. at 884.


                               THE TEXAS WHISTLEBLOWER ACT
       The Act prohibits a state or local governmental entity from suspending, terminating, or
taking 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). If
section 554.002 is violated, the public employee is entitled to sue for injunctive relief, actual
damages, court costs, and reasonable attorney fees. Id. § 554.003(a) (West 2012). In addition, if
the employee is suspended or terminated, he is entitled to reinstatement to his former position or
an equivalent position, compensation for lost wages during the period of suspension or
termination, and reinstatement of fringe benefits and seniority rights. Id. § 554.003(b). A
violation occurs when a governmental entity retaliates against a public employee for making a
good faith report of a violation of law to an appropriate law enforcement authority. Lueck, 290
S.W.3d at 878.


                          EMPLOYING LOCAL GOVERNMENTAL ENTITY
       As part of their first issue, Bradley and Dinger argue that Smith County’s governmental
immunity is waived because it employed the officer who conducted the investigation. Smith
County contends its governmental immunity is waived only if it employed Dinger and Bradley.
Standard of Review
       Statutory construction is a legal question, which we review de novo. Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Our primary objective when construing a statute is
to determine the legislature's intent. Tex. Lottery Comm’n, 325 S.W.3d at 635. If the statute is
unambiguous, we must apply its words according to their common meaning without resort to
rules of construction or extrinsic aids. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We



                                                 3
may consider other matters in ascertaining legislative intent, including the objective of the law,
its history, and the consequences of a particular construction. TEX. GOV'T CODE ANN.
§ 311.023(1), (3), (5) (West 2013); Shumake, 199 S.W.3d at 284.
Analysis
        Bradley and Dinger argue that the purpose of the Act is to protect the whistleblower.
Therefore, they contend that the Act allows the whistleblower to sue the true retaliator (in this
case, Smith County), whether or not it is the whistleblower’s employer.
        The state and its political subdivisions are immune from suit and liability as long as
immunity has not been abrogated by the legislature. Ben Bolt-Palito Blanco Consol. Indep.
School Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320,
324 (Tex. 2006). A statute does not waive governmental immunity unless the waiver is clear and
unambiguous. Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex. 2006). Under chapter
554, for governmental immunity to be waived, the plaintiff must be a public employee and allege
a violation of the chapter. See Lueck, 290 S.W.3d at 881.2 A violation of chapter 554 occurs
when a governmental entity retaliates against a public employee for making a good-faith report
of a violation of law to an appropriate law enforcement authority. Id. at 878.
        The Act evidences two legislative purposes:                (1) to protect public employees from
retaliation by their employer when, in good faith, employees report a violation of the law, and (2)
to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies.
City of New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex. App.—Austin 2004, no pet.).
        A governmental entity can violate the Act only by suspending, terminating, or taking
“other adverse personnel action” against a whistleblower.                    See TEX. GOV’T CODE ANN.
§ 554.002. Dinger and Bradley have not explained how an entity other than their own employer
can take adverse personnel action against them. Further, they have not identified any cases in
which a nonemployer was found liable under the Act.                         While the Act clearly waives
governmental immunity for the whistleblower’s employer, it does not do so for any other
governmental entity.

         2
           State v. Lueck concerned the waiver of sovereign immunity under the Act. Sovereign immunity refers to
the state’s immunity from suit and liability. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).
Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the state,
including counties, cities, and school districts. See Wichita Falls State Hosp., 106 S.W.3d at 694 n.3 (recognizing
that sovereign immunity and governmental immunity are distinct concepts although courts often use the terms
interchangeably).


                                                        4
       For Smith County’s governmental immunity to be waived, Bradley and Dinger had to
allege it violated chapter 554. And as explained above, Smith County had to be Bradley’s and
Dinger’s employer to violate the Act.        That Smith County employed the investigator is
insufficient to waive Smith County’s sovereign immunity. We overrule this portion of Bradley
and Dinger’s issue.


                                        JOINT EMPLOYER
       Alternatively, as part of their sole issue, Bradley and Dinger contend that Smith County
was their employer. They point out that according to the Whitehouse Police Department manual,
internal investigations of policy violations must be conducted by a city officer. Therefore, they
argue, Smith County had to become a “joint employing local government entity” to conduct the
investigation. As such, Bradley and Dinger were employed by Smith County as well as the City
of Whitehouse.
       A worker is an employee when the claimed employer has the right to control the
progress, details, and methods of his work. Thompson v. Travelers Indem. Co. of R.I., 789
S.W.2d 277, 278 (Tex. 1990); Newspapers, Inc. v. Love, 380 S.W.2d 582, 585–90 (Tex. 1964).
An employer controls not just the ends sought, but also controls the means and details of how to
get to the end achieved. Thompson, 789 S.W.2d at 278; Darensburg v. Tobey, 887 S.W.2d 84,
88 (Tex. App.—Dallas 1994, writ denied); Travelers Inc. Co. v. Ray, 262 S.W.2d 801, 803 (Tex.
Civ. App.–Eastland 1953, writ ref'd). The attributes of an employer include the right to hire and
fire, the obligation to pay wages and withhold taxes, the furnishing of tools, and most of all, the
power to control the details of the worker's performance. See U.S. Fid. & Guar. Co. v. Goodson,
568 S.W.2d 443, 447 (Tex. Civ. App.–Texarkana 1978, writ ref'd n.r.e.).
       The Whitehouse City Council authorized an independent outside entity to conduct an
investigation into possible policy violations committed by city employees. The City would then
take any necessary action depending on the result of the investigation. The City Council
delegated only the authority to conduct an investigation. There is no evidence that Smith County
had the authority to control Bradley and Dinger or to decide whether to hire, fire, or suspend
them. Smith County did not become a joint employer with the City when it conducted the




                                                5
investigation into possible policy violations. Therefore, Smith County’s immunity was not
waived. We overrule the remainder of Bradley and Dinger’s sole issue.3


                                                   DISPOSITION
         Having overruled Bradley and Dinger’s sole issue, we affirm the judgment of the trial
court.

                                                                   JAMES T. WORTHEN
                                                                      Chief Justice


Opinion delivered October 31, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




         3
          Bradley and Dinger also contend they followed Smith County’s grievance procedure in accordance with
section 554.006. Because we have determined that Smith County’s immunity was not waived, we do not reach this
argument. See TEX. R. APP. P. 47.1.


                                                          6
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                         OCTOBER 31, 2016


                                        NO. 12-16-00101-CV


                    CURTIS DINGER AND BRIAN SCOTT BRADLEY,
                                   Appellants
                                      V.
                             SMITH COUNTY, TEXAS,
                                    Appellee


                                Appeal from the 114th District Court
                     of Smith County, Texas (Tr.Ct.No. 15-1525-B/C/A/B)

                      THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the judgment.
                      It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, CURTIS DINGER AND BRIAN SCOTT BRADLEY, for which
execution may issue, and that this decision be certified to the court below for observance.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
