Reverse and Remand; Opinion Filed January 9, 2014.




                                            Court of Appeals
                                                              S     In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-11-00480-CV

                                         DALLAS COUNTY, TEXAS, Appellant
                                                     V.
                                              ROY LOGAN, Appellee

                                  On Appeal from the 95th Judicial District Court
                                              Dallas County, Texas
                                       Trial Court Cause No. DC-10-06270

                                               OPINION ON REMAND
                                         Before Justices Moseley, Lang, and Myers
                                                  Opinion by Justice Lang

           This is an interlocutory appeal pursuant to section 51.014(a)(8) of the Texas Civil

Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West

Supp. 2013). Appellant Dallas County asserts a single issue challenging the trial court’s denial

of its plea to the jurisdiction in a suit brought by appellee Roy Logan under the Texas

Whistleblower Act. See TEX. GOV’T CODE ANN. §§ 554.001–.010 (West 2012 & Supp. 2013).

           On original submission, this Court affirmed the trial court’s denial of Dallas County’s

plea to the jurisdiction. Dallas Cnty., Tex. v. Logan, 359 S.W.3d 367, 369 (Tex. App.—Dallas

2012), rev’d, 407 S.W.3d 745 (Tex. 2013). 1 In that opinion, we concluded several grounds


     1
        For purposes of clarity, this Court’s original opinion in this case is referred to herein as Logan I and the supreme court’s opinion in this
case is referred to as Logan II.
asserted on appeal by Dallas County pertaining to governmental immunity were not argued by

Dallas County in the trial court and therefore our consideration of such grounds was precluded

pursuant to section 51.014(a)(8). See Logan I, 359 S.W.3d at 371–72, 374.

       Dallas County filed a petition for review in the Supreme Court of Texas. While the

petition for review was pending, the supreme court issued its opinion in Rusk State Hospital v.

Black, 392 S.W.3d 88 (Tex. 2012), in which it resolved a conflict among the courts of appeals by

concluding section 51.014(a) “does not preclude an appellate court from having to consider

immunity grounds first asserted on interlocutory appeal.” Logan II, 407 S.W.3d at 746 (citing

Black, 392 S.W.3d at 95). Further, the supreme court disapproved contrary authority, including

the cases relied on by this Court in declining to consider the grounds described above in our

opinion on original submission. Id. (citing Black, 392 S.W.3d at 95 n.3). In its opinion in this

case, the supreme court stated in part, “Because Black rejects the basis for the court of appeals’

decision below, we grant the petition for review and, without hearing oral argument, reverse and

remand the cause to the court of appeals for further deliberation.” Id.

       On remand, we offered the parties the opportunity to file supplemental briefs in this

Court and both parties did so. We have considered the parties’ supplemental and original

appellate briefs in our analysis. Additionally, we set forth in detail in this opinion the evidence

in the record of the trial court and the arguments and assertions made by both parties initially in

the trial court, on appeal, and upon remand in order that we describe our complete analysis of

each challenge to jurisdiction asserted by Dallas County. For the reasons below, we reverse the

trial court’s order denying Dallas County’s plea to the jurisdiction and remand this case to the

trial court for further proceedings consistent with this opinion.




                                                –2–
                               I. FACTUAL AND PROCEDURAL BACKGROUND

            This lawsuit was filed by Logan on May 24, 2010. In his live petition at the time of the

order complained of, 2 Logan stated he was employed as a deputy constable with Dallas County

from July 2008 to September 2010. Logan contended that while he was employed by Dallas

County, he “made a good-faith report” that actions by the Dallas County Constable and other

Dallas County supervisory personnel “violated TEXAS PENAL CODE Chapters 31, 36, and/or 38,

among other things.” (emphasis original). Specifically, Logan asserted (1) he “believed he was

illegally harassed and intimidated” by the Dallas County Constable and the constable’s

subordinates for not “participating in forced ‘volunteer’ work,” (2) he “was illegally threatened

with termination” by the Dallas County Constable for “discussing matters of public concern,”

and (3) “favoritism” was “shown to other deputy constables who participated at the forced

‘volunteer’ activities.” Logan stated he believed these actions were illegal and he “reported

these illegal activities, to the Dallas County Judge and to investigators for the Dallas County

Commissioners Court.” According to Logan, (1) his reports of “violations of law” were the

“substantial and/or motivating factor” for “adverse personnel actions” against him, including

reprimands, suspension, and termination and (2) the actions of the Dallas County Constable and

his subordinates constituted “violations of Dallas County personnel rules that prohibit retaliation

for reporting violations of law” and “retaliation that violates the Texas Whistleblower Act.” 3

Further, Logan contended “the Dallas County Commissioners Court, and its investigators, was

an appropriate law enforcement authority to whom [Logan] could report these violations of law

as [Logan] reasonably and in good faith believed the Commissioners Court, and its investigators,


     2
         Logan’s live petition at the time of the order complained of was his January 21, 2011 second amended petition.
     3
        In addition to his whistleblower claim, Logan asserted claims for declaratory relief, injunctive relief, and equal protection. Those claims
are not at issue in this appeal.




                                                                       –3–
had authority to regulate under and/or enforce the laws violated and/or because the

Commissioners Court, and its investigators, have investigative or prosecutorial responsibility.”

Additionally, Logan asserted that to the extent Dallas County was immune from suit or liability

respecting his whistleblower claim, such immunity had been waived pursuant to the

Whistleblower Act.

          On December 22, 2010, Dallas County filed a general denial answer and asserted

affirmative defenses including, in part, immunity from suit and liability under “the doctrine of

sovereign immunity.” Additionally, in a section of its answer titled “Plea to the Jurisdiction,”

Dallas County contended its “sovereign/governmental immunity against suit has not been

waived.”

          One day later, Dallas County filed a document titled “Plea to the Jurisdiction.” 4 Therein,

Dallas County specifically addressed the trial court’s jurisdiction only as to Logan’s

whistleblower claims. Dallas County contended the investigators to whom Logan reported the

activities he believed to be illegal worked for Defenbaugh and Associates, a non-governmental

entity headed by investigator Danny Defenbaugh that was hired by the Dallas County

Commissioners Court to conduct a civil investigation. According to the final paragraph of

Dallas County’s plea to the jurisdiction,

          Dallas County’s immunity was not waived because Roy Logan did not make a
          good faith report of a violation of law to an appropriate law enforcement authority
          as required by § 554.002(a) of the Whistleblower Act. Danny Defenbaugh and his
          fellow investigators were not an appropriate law enforcement authority. Danny
          Defenbaugh and the other investigators who were in his employment were not
          part of a state or local governmental entity or of a the [sic] federal government as
          they could not regulate nor enforce the laws that Logan alleged had been violated
          or investigate or prosecute a violation of criminal law, as mandated by §
          554.002(a), (b)(1), (2) of the Whistleblower Act.


     4
       Additionally, the record shows Dallas County filed a separate motion for partial summary judgment at that same time. The record on
appeal does not include a copy of Dallas County’s motion for partial summary judgment.



                                                                 –4–
       Attached as exhibits to Dallas County’s plea to the jurisdiction were excerpts from

deposition testimony of Kenneth Lybrand, an investigator who had participated in the

investigation at issue. In those deposition excerpts, Lybrand stated in part (1) he had more than

twenty years of experience in “law enforcement,” including experience as a police officer with

the Dallas Police Department; (2) at the time of the investigation in question, he and the other

investigators were “working for Danny Defenbaugh & Associates,” a “separate investigative arm

that was brought in by a governmental entity,” and were not part of a state or local governmental

entity or the federal government; (3) he and “the other participants” in the investigation in

question did not “regulate” and were not able to “enforce” the “laws alleged to be violated” and

did not investigate or prosecute “a violation of criminal law”; (4) after completing the

investigation, he and the other investigators prepared a “Preliminary Investigative Report” for

Dallas County; (5) he “was not aware that the County Commissioners can enforce anything

criminal”; and (6) he had no “special knowledge about the County Judges’ enforcement authority

for civil laws or criminal laws in Dallas County.”

       In a January 25, 2011 response to Dallas County’s plea to the jurisdiction, Logan

contended (1) Dallas County asserted only one argument respecting his whistleblower claim: that

“Logan did not make his reports to an appropriate law enforcement authority” and (2) “[f]rom

the arguments made by Defendant, it seems clear the only element of Logan’s whistleblower

claim that is in dispute is whether the investigators and the Dallas County Judge were ‘an

appropriate law enforcement authority.’” According to Logan, Dallas County did not dispute

that Logan (1) was a public employee, (2) made good faith reports of violations of law by other

public employees, and (3) suffered adverse employment actions in retaliation for his reports.

Logan argued (1) he “made his reports to an appropriate law enforcement authority, as that term

is defined by the Texas Whistleblower Act” and (2) Dallas County “ignores the fact that [the

                                               –5–
investigators to whom Logan made his reports] were working for the Dallas County

Commissioners Court” when they received those reports.” Further, Logan contended in part

       The significant issue before the Court on the question of sovereign immunity is
       not what Mr. Lybrand thought his status was, nor even what this Court might
       determine his status was, as an “appropriate law enforcement authority.” Instead,
       the critical question here is whether Roy Logan reasonably and in good faith
       believed the investigators hired by the Dallas County Commissioners Court were
       “an appropriate law enforcement authority.”. . . Defendant does not challenge
       Logan’s stated beliefs.

(footnote omitted). Additionally, Logan asserted (1) “the relevant issue requires analysis of Roy

Logan’s beliefs”; (2) Dallas County is not entitled to dismissal of Logan’s claims based upon its

plea to the jurisdiction because it “fails completely to address the issue of Roy Logan’s beliefs”;

(3) the Dallas County District Attorney’s Office argued during discovery in this case that

Defenbaugh, his investigators, and Dallas County were “law enforcement agents entitled to

assert the law enforcement privilege” and “clearly this is evidence that shows it was reasonable

for Roy Logan, who is not an attorney, to in good faith believe the investigators, the Dallas

County Commissioners Court and the County Judge were each ‘an appropriate law enforcement

authority’”; and (4) Logan’s reports of “multiple violations of law” included reports of

“violations of the Family and Medical Leave Act,” “fraudulent awards of ‘comp time’ to some

Dallas County employees,” failure to properly serve civil process, “fraudulent billing” for civil

process that was not accomplished, “official oppression” and “retaliation” by the Dallas County

Constable, and “harassment” by the Dallas County Constable and his subordinates.

       Attached as exhibits to Logan’s response were several affidavits by Logan in which he

testified in part (1) despite “threats” to his job security, he chose to report actions that, based on

his training and experience, he believed were violations of law to investigators “hired by the

Dallas County Commissioners Court”; (2) he “also made reports to the Dallas County Judge”;

(3) he believed in “good faith” and based on his training, experience and what the investigators

                                                 –6–
and the Dallas County Judge told him, that the Dallas County Judge, the Commissioners Court,

and the investigators had the authority to “correct the illegal activities of employees and elected

officials of Dallas County” and “regulate under and/or enforce the laws violated”; (4) he

witnessed various actions respecting the “multiple violations of law” described above; (5) he had

“not been interviewed by any law enforcement personnel” relating to “the ongoing investigation

approved by the Dallas County Commissioners Court”; (6) he “understood the Dallas County

Judge was the chief executive officer and highest ranking elected official in Dallas County,

Texas”; and (7) during his meetings with the investigators working for the Dallas County

Commissioners Court, the investigators told Logan “they were hired by the Commissioner’s

Court; that their findings and [Logan’s] information would be turned over to the Commissioner’s

Court; and that any information indicating a criminal violation would be turned over to the

Dallas County District Attorney.” Additionally, the attachments to Logan’s response included a

March 10, 2010 letter from Logan to the Dallas County Judge in which Logan requested

“protection” due to purported “adverse actions” of the Dallas County Constable that allegedly

violated Dallas County Code section 86-811, which requires Dallas County to comply with the

Texas Whistleblower Act.

       In a reply to Logan’s response to the plea to the jurisdiction, Dallas County asserted in

part that Logan “failed to present any admissible summary judgment evidence to support an

allegation that an appropriate law enforcement authority could regulate under or enforce the law

alleged to have been violated or investigate or prosecute a violation of criminal law per §

554.002(a) of the Act.”        Additionally, Dallas County (1) contended “[t]he Plaintiff’s

jurisdictional defects cannot be cured by amendment, which were set out in Dallas County’s Plea

to the Jurisdiction” and (2) asserted objections to the evidence in the exhibits attached to Logan’s

response.

                                                –7–
           Following a hearing, 5 the trial court overruled Dallas County’s objections to the evidence

and denied Dallas County’s plea to the jurisdiction. 6 This interlocutory appeal of the portion of

the trial court’s order denying Dallas County’s plea to the jurisdiction was timely filed.

           In this Court’s original opinion, we construed Dallas County’s original appellate brief

and reply brief in this Court to assert the following arguments: (1) “Logan’s claims were barred

by governmental/sovereign immunity”; (2) the trial court lacked jurisdiction over Logan’s

“incurably invalid Texas Whistleblower Act suit”; (3) Logan’s pleadings affirmatively negated

the existence of jurisdiction; (4) the individual commissioners of the Dallas County

Commissioners Court and the Dallas County Judge “are not public employees” and therefore

“are not within the confines of the limiting statute of the [Whistleblower] Act”; (5) “Defenbaugh

and the other investigators who were in his employment were not part of a state or local

governmental entity or of a [sic] the federal government”; (6) the investigators, Dallas County

Commissioners Court, and Dallas County Judge could not “enforce or regulate the laws Logan

reported were violated” or “investigate or prosecute a criminal law violation”; (7) evidence

established Logan did not have a subjective good faith belief that he was making a report to an

appropriate law enforcement authority; and (8) “evidence established that Logan did not have an

objective good faith belief that he was making a report to an appropriate law enforcement

authority when he allegedly made allegations to the Dallas County Commissioners Court, Dallas

County Judge and the Danny Defenbaugh investigators.” Logan I, 359 S.W.3d at 373–74.

           However, this Court concluded the record showed that the only jurisdictional challenges

asserted by Dallas County in the trial court were (1) the investigators to whom Logan made his

reports were not part of a state or local entity or of the federal government and (2) the alleged

   5
       The appellate record contains no reporter’s record of the hearing on Dallas County’s plea to the jurisdiction.
   6
       Additionally, in the same order, the trial court postponed a hearing on the motion for partial summary judgment filed by Dallas County.



                                                                       –8–
law enforcement authorities to whom Logan made his reports could not regulate or enforce the

laws that Logan alleged had been violated or investigate or prosecute a violation of criminal law.

Id. at 374. This Court reasoned that even assuming without deciding that Dallas County was

correct as to those two challenges, the record did not show a failure by Logan to allege facts that

affirmatively demonstrate the trial court’s jurisdiction because (1) the investigators were not the

only authority to whom Logan made reports and (2) the Whistleblower Act could apply if Logan

believed in good faith that he made a report of a violation of law to an appropriate law

enforcement authority.     Id.   Further, this Court declined to address Dallas County’s other

arguments asserted on appeal, including those respecting good faith, because the record did not

show those arguments were made in the trial court. Id. at 373–74. Consequently, we affirmed

the trial court’s denial of Dallas County’s plea to the jurisdiction. Id. at 374.

       Following the supreme court’s reversal and remand, Dallas County filed a supplemental

brief in this Court in which it asserts two additional issues. Specifically, Dallas County contends

Logan did not make (1) a report to an “appropriate law enforcement authority,” which

requirement has been “further elucidated” by the Supreme Court in several cases decided after

this Court’s initial opinion in this case and does not include an entity that does not “have any

investigative prosecution, regulatory, [or] enforcement authority” for the laws allegedly violated

or (2) “a ‘good faith’ report of a violation of law,” which does not include reports of violations of

“an employer’s internal policies” or “personnel rules.”

          II. DENIAL OF DALLAS COUNTY’S PLEA TO THE JURISDICTION

                            A. Standard of Review and Applicable Law

       Whether a trial court has subject matter jurisdiction is a matter of law that is reviewed de

novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004); Tex.

Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002); City of Dallas

                                                 –9–
v. Heard, 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied). A party may challenge the

trial court’s subject matter jurisdiction by filing a plea to the jurisdiction. Miranda, 133 S.W.3d

at 225–26; Heard, 252 S.W.3d at 102. When the plea challenges the claimant’s pleadings, we

determine whether the claimant has pleaded facts that affirmatively demonstrate the trial court’s

jurisdiction, construing the pleadings liberally and in favor of the claimant. Miranda, 133

S.W.3d at 226; see also TEX. R. CIV. P. 45 (“All pleadings shall be construed so as to do

substantial justice.”). When the plea challenges the existence of jurisdictional facts, we consider

evidence submitted by the parties just as the trial court did. Miranda, 133 S.W.3d at 227. We

take as true all evidence favorable to the claimant, and we indulge all reasonable inferences in

his favor. Id. at 228. If the evidence is undisputed or if it does not raise a fact question on the

jurisdictional issue, then the plea can be resolved as a matter of law. Id. If the evidence raises a

fact question on the jurisdictional issue, then the fact-finder must resolve the issue at trial. Id. In

performing this review, an appellate court does not look to the merits of the case, but considers

only the pleadings and evidence relevant to the jurisdictional inquiry. See id. at 227; Cnty. of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

       If the pleadings do not allege facts sufficient to affirmatively demonstrate jurisdiction,

but the pleading defects are curable by amendment, the issue is one of pleading sufficiency and

the plaintiff should be afforded an opportunity to amend. See Miranda, 133 S.W.3d at 226–27;

see also Clifton v. Walters, 308 S.W.3d 94, 98 (Tex. App.—Fort Worth 2010, pet. denied); City

of Austin v. Leggett, 257 S.W.3d 456, 461 (Tex. App.—Austin 2008, pet. denied). If the

pleadings affirmatively negate jurisdiction, the plea should be granted.          See Miranda, 133

S.W.3d at 227; Leggett, 257 S.W.3d at 461.

       “[A] plaintiff may not have had fair opportunity to address jurisdictional issues by

amending its pleadings or developing the record when the jurisdictional issues were not raised in

                                                –10–
the trial court.” Black, 392 S.W.3d at 96. “Under such circumstances, appellate courts must

construe the pleadings in favor of the party asserting jurisdiction, and, if necessary, review the

record for evidence supporting jurisdiction.”       Id.    “[I]f the pleadings and record neither

demonstrate jurisdiction nor conclusively negate it, then in order to obtain dismissal of the

plaintiff’s claim, the defendant entity has the burden to show either that the plaintiff failed to

show jurisdiction despite having had full and fair opportunity in the trial court to develop the

record and amend the pleadings; or, if such opportunity was not given, that the plaintiff would be

unable to show the existence of jurisdiction if the cause were remanded to the trial court and

such opportunity afforded.” Id. If the defendant entity does not meet this burden, the appellate

court should remand the case to the trial court for further proceedings. Id.

       Under the common-law doctrine of sovereign immunity, the state cannot be sued without

its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011) (citing Tooke v. City

of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)). “When performing governmental functions,

political subdivisions derive governmental immunity from the state’s sovereign immunity.” Id.

(footnote omitted). Governmental immunity operates like sovereign immunity to afford similar

protection to subdivisions of the state, including counties, cities, and school districts. Harris

Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 694 n.3 (Tex. 2003)); Learners Online, Inc. v. Dallas Indep. Sch. Dist., 333 S.W.3d

636, 641–42 (Tex. App.—Dallas 2009, no pet.).             Like sovereign immunity, governmental

immunity has two components: immunity from liability, which bars enforcement of a judgment

against a governmental entity, and immunity from suit, which bars suit against the entity

altogether. See Tooke, 197 S.W.3d at 332. Governmental immunity from suit deprives a trial

court of subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. See

Miranda, 133 S.W.3d at 225–26.

                                               –11–
       “[E]ven if the State acknowledges liability on a claim, immunity from suit bars a remedy

until the Legislature consents to suit.” Learners Online, 333 S.W.3d at 642 (quoting Ben Bolt–

Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self–Ins.

Fund, 212 S.W.3d 320, 324 (Tex. 2006)).          The plaintiff bears the burden to affirmatively

demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. See, e.g., Dallas

Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); City of Irving v. Seppy, 301

S.W.3d 435, 443 (Tex. App.—Dallas 2009, no pet.). To determine if the plaintiff has met that

burden, “we consider the facts alleged by the plaintiff and, to the extent it is relevant to the

jurisdictional issue, the evidence submitted by the parties.” Whitley, 104 S.W.3d at 542.

       Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code provides for appeal

from an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a

governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). “[S]ection 51.014(a)

does not preclude an appellate court from having to consider immunity grounds first asserted on

interlocutory appeal.” Logan II, 407 S.W.3d at 746 (citing Black, 392 S.W.3d at 95); see also

Bedell v. State, No. 03-11-00502-CV, 2013 WL 2631738, at *3 (Tex. App.—Austin June 5,

2013, pet. denied) (mem. op. on rehearing) (concluding reasoning of Black applies to sovereign

immunity arguments raised after issuance of opinion and judgment in court of appeals).

       The Texas Whistleblower Act is contained in chapter 554 of the Texas Government

Code. See TEX. GOV’T CODE ANN. §§ 554.001–.010. Section 554.002 of the Whistleblower Act

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.




                                               –12–
       (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.

Id. § 554.002. Pursuant to section 554.0035, “[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.” Id. § 554.0035. Additionally, the statute provides “[s]overeign immunity is waived and

abolished to the extent of liability for the relief allowed under this chapter for a violation of this

chapter.” Id.

         The Whistleblower Act defines “law” as a state or federal statute, an ordinance of a

local governmental entity, or “a rule adopted under a statute or ordinance.” Id. § 554.001(1). A

report of a violation of law under the Whistleblower Act must be in “good faith.” City of Elsa v.

Gonzalez, 325 S.W.3d 622, 626 (Tex. 2010).

       “Good faith” in the Whistleblower Act context has both objective and subjective

elements. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 683 (Tex. 2013).

Thus, with respect to a report of a violation of law, the employee “must have believed he was

reporting conduct that constituted a violation of law and his belief must have been reasonable

based on his training and experience.” Univ. of Houston v. Barth, 403 S.W.3d 851, 854 (Tex.

2013) (citing Gonzalez, 325 S.W.3d at 626); see TEX. GOV’T CODE ANN. § 554.002(a). “Because

peace officers have more experience than those in other professions in deciding whether an act is

a violation of law, ‘the reasonableness of a peace officer’s belief that a law has been violated will

be examined more closely than will the belief of one in another, non-law enforcement

profession.’” Harris Cnty. Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956

(Tex. 1996); see also Wichita Cnty., Tex. v. Hart, 917 S.W.2d 779, 785 (Tex. 1996) (“A police

                                                –13–
officer, for example, may have had far more exposure and experience in determining whether an

action violates the law than a teacher or file clerk.”). A deputy constable is statutorily defined as

a “peace officer.” TEX. CODE CRIM. PROC. ANN. art. 2.12(2) (West Supp. 2013).

       In the context of section 554.002(b), “good faith” means (1) the employee believed the

governmental entity was authorized to regulate under or enforce the law alleged to be violated in

the report, or 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.” Gentilello, 398 S.W.3d at

683.   The supreme court has held that “an appropriate law-enforcement authority must be

actually responsible for regulating under or enforcing the law allegedly violated.” Id. at 685. “It

is not simply an entity responsible for ensuring internal compliance with the law allegedly

violated.” Id. “[A] whistleblower cannot reasonably believe his supervisor is an appropriate

law-enforcement authority if the supervisor’s power extends no further than ensuring the

governmental body itself complies with the law.” Id. at 689. “[F]or 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.” Id.

at 686; see Ysleta Indep. Sch. Dist. v. Franco, No. 13-0072, 2013 WL 6509471, at *2 (Tex. Dec.

13, 2013) (“a report to someone charged only with internal compliance is jurisdictionally

insufficient under the Whistleblower Act”); Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d

653, 655 (Tex. 2013) (“‘Authority of the entity to enforce legal requirements or regulate conduct

within the entity itself is insufficient to confer law-enforcement authority status’ under the

Whistleblower Act.” (quoting Gentilello, 398 S.W.3d at 686)).

       A county commissioners court derives its power from the Texas Constitution, which

provides in part

                                               –14–
                  Each county shall, in the manner provided for justice of the peace and
          constable precincts, be divided into four commissioners precincts in each of
          which there shall be elected by the qualified voters thereof one County
          Commissioner, who shall hold his office for four years and until his successor
          shall be elected and qualified. The County Commissioners so chosen, with the
          County Judge as presiding officer, shall compose the County Commissioners
          Court, which shall exercise such powers and jurisdiction over all county business,
          as is conferred by this Constitution and the laws of the State, or as may be
          hereafter prescribed.

TEX. CONST. art. V, § 18(b). The Texas Supreme Court has construed this section to mean that

“although a commissioners court may exercise broad discretion in conducting county business,

the legal basis for any action taken must be grounded ultimately in the constitution or statutes.”

Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993). Further, “[a]s the administrative

head of county government, a commissioners court also possesses broad implied powers to

accomplish its legitimate directives.” Id.

                                                             B. Analysis

          In its sole issue on appeal, Dallas County asserts the trial court erred by denying its plea

to the jurisdiction. As described above, in its original appellate brief and reply brief in this

Court, Dallas County argues (1) “Logan’s claims were barred by governmental/sovereign

immunity” 7; (2) the trial court lacked jurisdiction over Logan’s “incurably invalid Texas

Whistleblower Act suit”; (3) Logan’s pleadings affirmatively negated the existence of

jurisdiction; (4) the individual commissioners of the Dallas County Commissioners Court and the

Dallas County Judge “are not public employees” and therefore “are not within the confines of the

limiting statute of the [Whistleblower] Act”; (5) “Defenbaugh and the other investigators who

were in his employment were not part of a state or local governmental entity or of a [sic] the

federal government”; (6) the investigators, Dallas County Commissioners Court, and Dallas


     7
        To the extent Dallas County uses the terms “sovereign immunity” and “governmental immunity” interchangeably, we construe the issues
in this appeal to pertain to “governmental immunity.” See Sykes, 136 S.W.3d at 638.



                                                                 –15–
County Judge could not “enforce or regulate the laws Logan reported were violated” or

“investigate or prosecute a criminal law violation”; (7) evidence established Logan did not have

a subjective good faith belief that he was making a report to an appropriate law enforcement

authority; and (8) “evidence established that Logan did not have an objective good faith belief

that he was making a report to an appropriate law enforcement authority when he allegedly made

allegations to the Dallas County Commissioners Court, Dallas County Judge and the Danny

Defenbaugh investigators.” Further, in its supplemental brief in this Court, Dallas County asserts

in two additional issues that Logan did not make (1) a report to an “appropriate law enforcement

authority,” which requirement has been “further elucidated” by the Supreme Court in several

cases decided after this Court’s initial opinion in this case and does not include an entity that

does not “have any investigative prosecution, regulatory, [or] enforcement authority” for the

laws allegedly violated or (2) “a ‘good faith’ report of a violation of law,” which does not

include reports of violations of “an employer’s internal policies” or “personnel rules.”

       Logan contends in part in his original brief in this Court that (1) Dallas County’s

jurisdictional argument in the trial court was limited to the issue of “whether the investigators

were an appropriate law enforcement authority”; (2) Dallas County’s additional arguments were

“not preserved for appeal” and should not be considered by this Court; (3) the question of

whether the individual commissioners and the Dallas County Judge are public employees “is not

relevant to the question of the trial court’s jurisdiction over this claim”; (4) Logan’s pleadings

did not negate jurisdiction; (5) “Logan made numerous reports of violations of law to an

appropriate law enforcement authority”; (6) Logan acted in good faith; and (7) the investigators

and the Dallas County Judge “were clearly all part of a local governmental entity.” In his

supplemental brief in this Court, Logan asserts that “[w]hile [Dallas County’s] new arguments

were not expressly raised in the trial court, Logan’s response to the County’s jurisdictional plea

                                               –16–
included evidence and arguments to address both arguments.” Specifically, Logan contends in

part that he showed (1) he reported violations of both criminal and civil laws, including

violations of Texas Penal Code chapters 31, 36, and/or 38, the Texas Whistleblower Act, the

“Family and Medical Leave Act, 29 U.S.C. §2601 et seq.,” and Dallas County Code sections 86-

811, 86-781, 86-942, 86-902, 86-903, and 86-904; (2) he reported those violations of law “to the

Dallas County Judge, who was part of the Dallas County Commissioners Court” and “to

investigators who were the agents of the Dallas County Commissioners Court”; (3) “the Dallas

County Judge and Commissioners Court were appropriate law enforcement authorities as to the

violations of civil laws that he reported—particularly with respect to violations of the Dallas

County Code, which is not merely an internal policy”; and (4) “he acted in good faith, even if his

actions are subjected to heightened scrutiny due to his status as a police officer.” According to

Logan, the trial court correctly denied the plea to the jurisdiction because his “evidence and

arguments raised fact questions that must be decided by a jury.” Further, Logan asserts (1) “if

this Court now believes Logan’s evidence was in any way deficient, Logan should be allowed to

actually present evidence and argument on these issues that were not previously raised in the trial

court” and (2) because he “never had a full opportunity in the trial court to respond to Dallas

County’s newly raised issues,” “fundamental principles of due process require that he be allowed

the opportunity to respond to Dallas County’s evidentiary issues in a forum capable of receiving

evidence—the trial court.”

       As described above, “section 51.014(a) does not preclude an appellate court from having

to consider immunity grounds first asserted on interlocutory appeal.” Logan II, 407 S.W.3d at

746 (citing Black, 392 S.W.3d at 95). Accordingly, we disagree with Logan’s assertion in his

original brief that this Court should not consider immunity grounds not asserted by Dallas

County in the trial court. See Logan II, 407 S.W.3d at 746; Black, 392 S.W.3d at 95; Bedell,

                                              –17–
2013 WL 2631738, at *3. We consider in turn each of Dallas County’s appellate arguments

respecting immunity.

       First, we consider Dallas County’s assertion that “Logan’s pleadings affirmatively negate

the trial court’s jurisdiction over his claim as a matter of law.” In support of this argument,

Dallas County cites case law and Logan’s pleadings, but does not specifically explain how those

pleadings affirmatively negate jurisdiction. However, to the extent Dallas County’s general

assertion that jurisdiction has been negated is intended to allege a deficiency separate from the

other alleged deficiencies respecting Logan’s claim, we examine Logan’s pleadings.

        “There are but two jurisdictional requirements under section 554.0035.” State of Tex. v.

Lueck, 290 S.W.3d 876, 881 (Tex. 2009). For the government’s immunity to be waived, the

plaintiff must (1) be a public employee and (2) allege a violation of chapter 554. Id. However,

“the elements under section 554.002(a) must be considered in order to ascertain what constitutes

a violation, and whether that violation has actually been alleged.” Id. Thus, “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.” Id.

       Logan asserts in part that he “satisfied the pleading requirements explained in Lueck by

alleging in his [second amended petition] that he was a public employee; who in good faith;

reported a violation of law by the employing governmental entity or another public employee; to

an appropriate law enforcement authority.” (footnotes omitted). The record shows Logan stated

in part in his live pleading (1) he was employed as a deputy constable with Dallas County from

July 2008 to September 2010; (2) he made “a good-faith report” of “violations of law” by the

Dallas County Constable to “the Dallas County Judge and to investigators for the Dallas County

Commissioners Court”; (3) “the Dallas County Commissioners Court, and its investigators, was

an appropriate law enforcement authority to whom [Logan] could report these violations of law

                                               –18–
as [Logan] reasonably and in good faith believed the Commissioners Court, and its investigators,

had authority to regulate under and/or enforce the laws violated and/or because the

Commissioners Court, and its investigators, have investigative or prosecutorial responsibility”;

and (4) his reports of “violations of law” were the “substantial and/or motivating factor” for

“adverse personnel actions” against him, including reprimands, suspension, and termination.

Construing Logan’s pleadings liberally and in his favor, we cannot agree with Dallas County’s

broad contention that “Logan’s pleadings affirmatively negate the trial court’s jurisdiction over

his claim as a matter of law.” See TEX. GOV’T CODE ANN. § 554.002; Miranda, 133 S.W.3d at

226 (when plea challenges claimant’s pleadings, we determine whether claimant has pleaded

facts that affirmatively demonstrate trial court’s jurisdiction, construing pleadings liberally and

in favor of claimant).

       Second, we address Dallas County’s argument that the Dallas County Judge and the

commissioners on the Dallas County Commissioners Court “are not public employees” and

therefore “are not within the confines of the limiting statute of the [Whistleblower] Act.” In

support of that argument, Dallas County asserts that the county excludes elected officials,

including members of the Dallas County Commissioners Court and the Dallas County Judge,

from the definition of “employee” for purposes of the Texas Workers’ Compensation Act. See

TEX. LAB. CODE ANN. § 504.012 (West 2006).

       Logan responds in part that “nothing in the statute, and nothing in any of the cases cited

by Dallas County in its Brief, supports or even suggests that only public employees can receive

whistleblower reports.” Additionally, Logan asserts “the supposed issue of the employment

status of Dallas County Commissioners or the Dallas County Judge is not relevant to the

question of the trial court’s jurisdiction over this claim.”




                                                 –19–
       Dallas County does not explain, and the record does not show, how the question of

whether the individual commissioners of the Dallas County Commissioners Court and the Dallas

County Judge are “public employees” or are defined as “employees” for workers’ compensation

purposes has any bearing on the issue in this appeal. Therefore, we cannot agree with Dallas

County’s argument respecting the employment status of the Dallas County Commissioners and

Dallas County Judge.

       Third, we address Dallas County’s contention that the investigators hired by the Dallas

County Commissioners Court were not “part of a state or local governmental entity or of the

federal government.” See TEX. GOV’T CODE ANN. § 554.002(b). In support of that contention,

Dallas County cites Lybrand’s testimony that at the time of the investigation, he was working for

“Defenbaugh & Associates” and was not part of a state or local governmental entity or the

federal government.

       Logan asserts the investigators were “hired by, and conducted their investigation on

behalf of, the Dallas County Commissioners Court” and therefore were “part of a local

governmental entity.” Additionally, Logan contends “[a]s agents hired by the Dallas County

Commissioners Court to conduct an investigation to aid the Court’s legislative and governing

function, the investigators were clearly ‘part of a state or local governmental entity.’” However,

other than citing general principles of law pertaining to agency, Logan cites no authority to

support his argument.    The Seventh District Court of Appeals in Amarillo recently stated,

“Neither the plain language of the Whistleblower Act nor any other indicator of legislative intent

we have seen suggests to us the Legislature intended that individuals, or committees, having

merely a duty of reporting to a governmental entity are ‘part of’ the entity.” Ahmed v. Tex. Tech

Univ. Health Sci. Ctr. Sch. of Med. at Amarillo, No. 07-11-00176-CV, 2013 WL 265076, at *3

(Tex. App.—Amarillo Jan. 23, 2013, no pet.) (mem. op.). The record in this case shows

                                              –20–
Defenbaugh and Associates was hired by Dallas County to conduct an investigation of Dallas

County employment practices and provide a report to the Dallas County Commissioners Court

based on that investigation. On this record, we conclude no evidence shows the investigators in

question were “part of a state or local governmental entity or of the federal government” for

purposes of the Whistleblower Act. See id.; TEX. GOV’T CODE ANN. § 554.002(b).

       Fourth, we consider Dallas County’s assertion that Logan lacked a subjective good faith

belief that he was making a report to an appropriate law enforcement authority. Specifically,

Dallas County asserts in part that Logan (1) “admitted that he knew he was not meeting with an

appropriate law enforcement authority when he unequivocally admitted that he had not been

interviewed by any law enforcement personnel or anyone from the Dallas County District

Attorney’s Office,” (2) “knew that the Danny Defenbaugh investigators’ findings and his

information that indicated a criminal law violation would be turned over to the Dallas County

District Attorney,” (3) “admitted that the [Dallas] County Judge told him that he [the Dallas

County Judge] ‘was going to correct the problems in Precinct 5,’” and (4) “stated that he thought

that [the Dallas County Judge] was the chief executive officer and highest ranking official in

Dallas County, Texas, which is one of the reasons he made reports to him.” According to Dallas

County, “[n]o evidence exists that Logan, who worked as a certified peace officer in the State of

Texas, somehow subjectively believed that either the Dallas County Judge or the Commissioners

Court had the authority to correct alleged illegal activities of anyone.”

       Logan contends he “presented several affidavits that show his good faith subjective

beliefs” and Dallas County presented no evidence to controvert those beliefs. Further, according

to Logan, “good faith remains a question of fact.”

       The record shows Logan testified in part in his affidavits that (1) despite “threats” to his

job security, he chose to report actions that, based on his training and experience, he “believed

                                                –21–
were violations of law” to investigators hired by the Dallas County Commissioners Court; (2) he

“also made reports to the Dallas County Judge”; and (3) he believed in “good faith” and based on

his training, experience and what the investigators and the Dallas County Judge told him” that

the Dallas County Judge and the Dallas County Commissioners Court had the authority to

“correct the illegal activities of employees and elected officials of Dallas County” and “regulate

under and/or enforce the laws violated.”

          When a plea challenges the existence of jurisdictional facts, we take as true all evidence

favorable to the claimant and indulge all reasonable inferences in his favor. Miranda, 133

S.W.3d at 228. On this record, we cannot agree with Dallas County that the record shows “no

evidence” as to Logan’s subjective good faith. See id.

          Fifth, we consider Dallas County’s argument that the Dallas County Commissioners

Court and Dallas County Judge were not appropriate law enforcement authorities because they

could not regulate or enforce the laws that Logan alleged had been violated or investigate or

prosecute a violation of criminal law. 8 As described above, the record shows that in its reply to

Logan’s response to the plea to the jurisdiction in the trial court, Dallas County asserted in part

that Logan “failed to present any admissible summary judgment evidence to support an

allegation that an appropriate law enforcement authority could regulate under or enforce the law

alleged to have been violated or investigate or prosecute a violation of criminal law per §

554.002(a) of the Act.” To the extent that statement can be construed to apply to evidence

respecting Dallas County’s plea to the jurisdiction and to extend beyond challenging the

admissibility of such evidence, the complaint in question was raised generally in the trial court.


     8
       Additionally, Dallas County argues the investigators were not appropriate law enforcement authorities because they could not regulate or
enforce the laws allegedly violated or investigate or prosecute a violation of criminal law. However, we concluded above that the investigators
were not “part of a state or local governmental entity or of the federal government” for purposes of the Whistleblower Act. See TEX. GOV’T
CODE ANN. § 554.002(b). Therefore, we need not address the parties’ other contentions respecting the investigators. See TEX. R. APP. P. 47.1.




                                                                   –22–
However, Dallas County specified for the first time on appeal that this complaint challenges “the

objective component of the good-faith test” respecting its plea to the jurisdiction. Because all of

Dallas County’s five remaining appellate arguments also turn, at least in part, on the existence of

Logan’s “objective good faith belief,” we address these six arguments together.

       As described above, Dallas County’s arguments that require an analysis of Logan’s

“objective good faith belief” include (1) the Dallas County Commissioners Court and Dallas

County Judge were not appropriate law enforcement authorities because they could not regulate

or enforce the laws that Logan alleged had been violated or investigate or prosecute a violation

of criminal law; (2) “evidence established that Logan did not have an objective good faith belief

that he was making a report to an appropriate law enforcement authority when he allegedly made

allegations to the Dallas County Commissioners Court, Dallas County Judge and the Danny

Defenbaugh investigators”; (3) Logan did not make a report to an “appropriate law enforcement

authority,” which requirement has been “further elucidated” by the Supreme Court in several

cases decided after this Court’s initial opinion in this case and does not include an entity that

does not “have any investigative prosecution, regulatory, [or] enforcement authority” for the

laws allegedly violated; (4) Logan did not make “a ‘good faith’ report of a violation of law,”

which does not include reports of violations of “an employer’s internal policies” or “personnel

rules”; (5) “Logan’s claims were barred by governmental/sovereign immunity”; and (6) the trial

court lacked jurisdiction over Logan’s “incurably invalid Texas Whistleblower Act suit.”

       In support of these challenges on appeal, Dallas County cites, inter alia, Gentilello.

Further, Dallas County contends (1) the powers of the Dallas County Judge and the Dallas

County Commissioners Court are limited to those expressly delegated by the Texas Constitution

and Legislature and (2) the powers so delegated do not include the power to regulate under or




                                              –23–
enforce the laws alleged to have been violated or investigate or prosecute a violation of criminal

law.

       Logan responds in part in his original brief in this Court that (1) “the proper inquiry is not

whether the investigators were actually law enforcement authorities,” but rather “whether Roy

Logan had a good faith belief that the investigators were an appropriate law enforcement

authority” and (2) “when the Dallas County Commissioners Court hired investigators to

investigate improper conduct . . . , that was an action regulating under and/or enforcing the laws

[Logan] alleged were being violated.” Additionally, Logan asserts in part in his supplemental

appellate brief (1) “[c]ounty commissioners courts are appropriate law enforcement authorities

even under the reasoning from Gentilello”; (2) “[n]o credible argument can be made that the

Dallas County Commissioners Court did not ‘regulate’ when it enacted the DALLAS COUNTY

CODE” (emphasis original); and (3) the violations of law in question “were properly reported by

Roy Logan to the appropriate law enforcement authorities with the power to regulate under and

enforce these laws—the Dallas County Commissioners Court.” Specifically, Logan contends in

part

       [Dallas County] argues the Dallas County Code is merely a collection of internal
       policies, while noting “internal policies do not meet the definition of laws.” But
       no case cited by Dallas County involves the report of a violation of a county code
       to a commissioners court. Logan shows the Dallas County Code is a law for the
       purposes of the Texas Whistleblower Act. It was enacted by the Dallas County
       Commissioners Court under authority granted by the Texas Constitution.
       Because the Dallas County Code is a law, [Logan’s] many reports of violations of
       the Code, to the legislative body that enacted the Code—the Commissioners
       Court, are reports of violations of law under the Texas Whistleblower Act.

Finally, Logan (1) argues he “never had a full opportunity in the trial court to respond to Dallas

County’s newly raised issues” and “should be allowed to actually present evidence and argument

on these issues that were not previously raised in the trial court” and (2) asserts in a footnote in

his supplemental brief that “[n]ew evidence may include regulation by the Dallas County

                                               –24–
Commissioners Court in promulgating laws and/or revisions of Dallas County Code sections

and/or a plea agreement by [the Dallas County Constable in question] in a criminal prosecution

that followed whistleblower reports by Logan and others.”

       Logan’s argument that the proper inquiry respecting objective good faith “is not whether

the investigators were actually law enforcement authorities,” but rather “whether Roy Logan had

a good faith belief that the investigators were an appropriate law enforcement authority,” is

similar to the analysis of the El Paso Court of Appeals that was rejected by the supreme court in

Ysleta. See Ysleta Indep. Sch. Dist. v. Franco, 394 S.W.3d 728, 731–32 & n.4 (Tex. App.—El

Paso 2012), rev’d 2013 WL 6509471. We decline to apply that reasoning. Rather, the supreme

court has made clear that “an appropriate law-enforcement authority must be actually responsible

for regulating under or enforcing the law allegedly violated.” Gentilello, 398 S.W.3d at 685.

Further, that court has stated “a whistleblower cannot reasonably believe his supervisor is an

appropriate law-enforcement authority if the supervisor’s power extends no further than ensuring

the governmental body itself complies with the law.” Gentilello, 398 S.W.3d at 689; see Ysleta,

2013 WL 6509471, at *2.

        As to Logan’s other arguments, the record does not show (1) Logan’s objective good

faith belief was challenged in the trial court or (2) evidence was presented in the trial court

respecting the issue of Logan’s objective good faith belief. The supreme court has stated that

when jurisdictional issues were not raised in the trial court, the plaintiff may not have had fair

opportunity to address such issues by amending his pleadings or developing the record. Black,

392 S.W.3d at 96. On this record, we conclude such circumstances exist in this case respecting

Dallas County’s six remaining challenges described above. Further, we conclude Dallas County

has not met its burden to demonstrate Logan would be unable to show the existence of




                                              –25–
jurisdiction if the cause were remanded to the trial court and such opportunity afforded. Id.

Therefore, this case is remanded to the trial court for further proceedings. 9 See id.

                                                         III. CONCLUSION

           We reverse the portion of the trial court’s order denying Dallas County’s plea to the

jurisdiction and remand this case to the trial court for further proceedings consistent with this

opinion. See Black, 392 S.W.3d at 100.



                                                                               /Douglas Lang/
                                                                               DOUGLAS S. LANG
                                                                               JUSTICE



110480RF.P05




           9
             We note that the supreme court’s opinions in Ysleta and Gentilello were issued subsequent to the proceedings in the trial court in this
case. See Ysleta, 2013 WL 6509471; Gentilello, 398 S.W.3d at 685–689. Those opinions are particularly important on remand in this case in that
they provide specific guidance regarding the proof required of a purported whistleblower to “support an objective, good-faith belief that the
reported-to official is an ‘appropriate law-enforcement authority’ under the [Whistleblower] Act.” Ysleta, 2013 WL 6509471, at *1.




                                                                      –26–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

DALLAS COUNTY, TEXAS, Appellant                        On Appeal from the 95th Judicial District
                                                       Court, Dallas County, Texas
No. 05-11-00480-CV           V.                        Trial Court Cause No. DC-10-06270.
                                                       Opinion delivered by Justice Lang. Justices
ROY LOGAN, Appellee                                    Moseley and Myers participating.

        In accordance with this Court’s opinion of this date, the portion of the trial court’s order
denying the plea to the jurisdiction of appellant Dallas County, Texas, is REVERSED and this
cause is REMANDED to the trial court for further proceedings consistent with this opinion.
        It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 9th day of January, 2014.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE




                                                –27–
