                             NUMBER 13-07-004-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF TRANSPORTATION,                                         Appellant,

                                           v.

SERGIO GARCIA,                                                               Appellee.


                  On appeal from the 103rd District Court
                       of Cameron County, Texas.


             MEMORANDUM OPINION ON REMAND

        Before Chief Justice Valdez and Justices Garza and Vela
           Memorandum Opinion on Remand by Justice Vela

       This is an appeal from the denial of a plea to the jurisdiction. In a single issue,

appellant, Texas Department of Transportation (“TxDOT”), contends that the trial court
erred in denying its plea to the jurisdiction because appellee, Sergio Garcia, did not plead

and cannot show that he reported a violation of law to an appropriate law enforcement

authority as required by the Texas Whistleblower Act (“Act”). See TEX . GOV’T CODE ANN .

§ 554.002(a) (Vernon 2004). We hold that the trial court erred in denying TxDOT’s plea

to the jurisdiction and we render judgment dismissing Garcia’s cause of action for want of

jurisdiction.

                                      I. BACKGROUND

      On May 17, 2004, Garcia initiated a suit against TxDOT seeking relief under the Act.

On June 30, 2006, TxDOT filed a plea to the jurisdiction in the trial court, contending that

it lacked subject matter jurisdiction over Garcia’s claim because Garcia failed to make a

good faith report of a violation of law to an appropriate law enforcement authority. See id.

§ 554.002(a). The trial court denied the plea to the jurisdiction on December 11, 2006, and

TxDOT subsequently filed an interlocutory appeal. On November 1, 2007, this Court

affirmed the trial court’s order. Tex. Dep’t of Transp. v. Garcia, 243 S.W.3d 759, 763 (Tex.

App.–Corpus Christi 2007). The supreme court reversed this Court’s decision in light of

its opinion in State v. Lueck, 290 S.W.3d 876 (Tex. 2009), wherein it held that the elements

of a cause of action under the Act can be considered as jurisdictional facts when

necessary to determine whether a plaintiff has alleged a violation under the Act. Tex. Dep’t

of Transp. v. Garcia, 293 S.W.3d 195, 196 (Tex. 2009) (citing Lueck, 290 S.W.3d at 881).

                                  II. STANDARD OF REVIEW

     A plea to the jurisdiction is considered a dilatory plea, which challenges a trial court’s

authority to hear a cause of action without regard to the merits of the claim. Bland Indep.



                                              2
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Furthermore, parties may challenge

the court’s subject matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). It is the plaintiff’s burden to allege

facts that affirmatively demonstrate that a trial court has subject matter jurisdiction. Tex.

Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If a petition

affirmatively negates the court’s jurisdiction, then the court may grant the jurisdictional plea

without permitting the plaintiff to amend the pleadings. Miranda, 133 S.W.3d at 226.

                                         III. ANALYSIS

      This case was brought by Garcia pursuant to the Act. Under the Act, immunity is

waived when a public employee alleges a violation of chapter 554 of the government code.

TEX . GOV’T CODE ANN . § 554.0035. Upon remand, this Court is asked to consider whether

Garcia’s report of violations of law to “enforcement authorities within TxDOT was a good

faith report to an appropriate law enforcement authority.” Garcia, 293 S.W.3d at 196. We

hold, under Lueck, that it was not.

      Section 554.002(a) of the Act states:

       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. [Emphasis added].

       Because Garcia pleaded two allegations that could be regarded as “violations of

law,” we consider whether Garcia reported the “violations” to “an appropriate law

enforcement authority.” When reporting a “violation” to an “appropriate enforcement

authority,” a public employee should, in good faith, believe that the “enforcement authority”



                                               3
is authorized to “enforce the law alleged” or have the ability to “investigate or prosecute a

violation of criminal law.” TEX . GOV’T CODE ANN . § 554.002(b)(1)-(2). In Texas Department

of Transportation v. Needham, the supreme court held that TxDOT was not considered an

appropriate law enforcement authority to enforce laws that related to driving while

intoxicated. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 317 (Tex. 2002) (holding

employer’s power to conduct internal investigations or disciplinary practices will not satisfy

the “appropriate law enforcement authority” standard under the Act). According to Garcia’s

original petition, he reported the “violation” to the “enforcement authorities” within TxDOT.

Under Needham, TxDOT is not considered an “appropriate law enforcement authority” for

purposes of reporting a “violation of the law” under the Act. Id. at 320.

       Although an employer has the power to conduct disciplinary procedures, when an

employee makes an allegation of a “violation,” it does not satisfy the standard for an

“appropriate law enforcement authority” under the Act. Id. at 321. Garcia did not report

the employee to any law enforcement agency, but rather made an internal complaint. Cf.

Lueck, 290 S.W.3d at 885 (stating that an employee reported a violation to the “head of

a division” within TxDOT, but the head of division could not be regarded as one who could

regulate or enforce the violation of the law alleged). Considering Garcia’s pleadings and

section 554.002(a) of the Act, we hold that Garcia’s pleadings have not affirmatively

demonstrated that he reported a violation of law to an appropriate law enforcement

authority under the Act and therefore, there are no jurisdictional facts which would implicate

the court’s subject matter jurisdiction.




                                              4
                                     IV. CONCLUSION

   We sustain appellant’s issue, reverse the judgment of the trial court, and render

judgment dismissing the cause for lack of subject-matter jurisdiction.




                                                   ROSE VELA
                                                   Justice


Delivered and filed the 24th
day of June, 2010.




                                            5
