

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



 
OFFICE OF THE ATTORNEY GENERAL OF
  TEXAS,
 
                            Appellant,
 
v.
 
 
LAURA G. RODRIGUEZ,
 
                           
  Appellee.


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§ 
 
 


 
 
No. 08-11-00235-CV
 
Appeal from the
 
County
  Court at Law No. 6
 
of El
  Paso County, Texas
 
(TC# 2010-1710)
 




 


 


 



 
O
P I N I O N
In
this whistleblower case, the Office of the Attorney General of Texas (“OAG”)
appeals from a portion of the trial court’s order denying its plea to the
jurisdiction.  In three issues for review,
the OAG raises one primary complaint that Laura Rodriguez (“Rodriguez”) failed
to report a violation of law to an “appropriate law enforcement authority” as
required by the Whistleblower Act.  For
the reasons that follow, we affirm.
FACTUAL
SUMMARY




            Rodriguez was employed as a field regional
administrator in the OAG’s child support division.  In January 2009, she discovered that her
former executive assistant, Deborah Galindo (“Galindo”), had added a dependent
to her state-sponsored insurance plan whom Galindo claimed was a niece, but who
was, in fact, the girlfriend of Galindo’s son. 
Believing that Galindo had committed insurance fraud and tampered with governmental
records, Rodriguez -- acting pursuant to OAG policy -- reported her suspicions
to her immediate supervisors.  One of them
advised Rodriguez to report her concerns anonymously to the Ethics Advisor, the
individual designated by the Attorney General to administer the OAG’s Fraud,
Waste, and Abuse Prevention Program.  Rodriguez
did so.  Shortly after receiving the anonymous
report, the Ethics Advisor sent the OAG’s Deputy Attorney General for Criminal
Justice a memorandum asking for his assistance “[b]ecause allegations of fraud
might involve criminal conduct.” 
Following an investigation by the OAG’s Criminal Investigation Division
(“CID”)[1], the
Ethics Advisor released a report in which he concluded that Galindo had not
committed fraud but had misstated information. 
He recommended that human resources take appropriate disciplinary
action.  Galindo was suspended from work
for five days.
In the
months that followed, Rodriguez was demoted and given a poor evaluation.  She was eventually terminated in April 2010,
after the OAG’s Ombudsman released a report concerning her claim of retaliation
for reporting Galindo.  Thereafter, Rodriguez
sued the OAG for violations of the Whistleblower Act.  She alleged that she had a good faith belief
that Galindo violated the law and that she had reported these violations to the
entities that had the authority to “investigate, enforce, regulate, or
prosecute criminal laws involving insurance fraud or tampering with
governmental records . . . .”  Rodriguez
identified these entities as “the Fraud, Waste, and Abuse Prevention Program
and/or the Criminal Investigation Division of [the OAG] . . . .  According to Rodriguez, her report resulted
in adverse personnel actions when she was demoted and terminated.  
The
OAG filed a plea to the jurisdiction asserting that Rodriguez’s claims were
barred by sovereign immunity because she failed to allege the jurisdictional
facts necessary to invoke the Whistleblower Act.  In particular, the OAG maintained that
Rodriguez failed to allege that she reported a violation of law to an
“appropriate law enforcement authority” because none of the persons to whom she
made her report had the authority to prosecute criminal law violations.  The trial court denied the plea as it
pertained to this basis, but granted it as it pertained to Rodriguez’s failure
to grieve her claims and failure to file the lawsuit timely.  This interlocutory appeal follows.[2]
STANDARD
OF REVIEW
            Governmental immunity from suit
defeats a trial court’s subject matter jurisdiction and is properly asserted in
plea to the jurisdiction.  Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).  Whether the trial court has subject matter
jurisdiction is a question of law, which we review de novo.  Id. at 226.  A plaintiff bears the burden of alleging
facts affirmatively demonstrating that the trial court has subject matter
jurisdiction.  Id.  In determining whether a
plaintiff has done so, we construe the pleadings liberally in the plaintiff’s
favor and look to the pleader’s intent.  Id. 
In determining a plea to the jurisdiction, 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).  If evidence negates the existence
of jurisdictional facts as a matter of law, the trial court should grant the
plea.  City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008).  However, if evidence does not negate jurisdiction
as a matter of law or if it creates a fact issue, the trial court should deny
the plea.  Id.
THE
WHISTLEBLOWER ACT
The Whistleblower
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 government entity for
the relief provided by the Act.  Tex.Gov’t Code Ann. § 554.0035 (West 2012).  In determining whether an employee has
alleged a violation, 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 her 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.
Appropriate Law Enforcement Authority
Under
the Whistleblower Act, a state or local governmental entity may not suspend or
terminate the employment of, or take other adverse personnel action against, an
employee who makes a good faith report to an appropriate law enforcement
authority that the entity or another employee has violated the law.  Tex.Gov’t
Code Ann. § 554.002(a); Lueck,
290 S.W.3d at 878.  As defined by the
Act, 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. at § 554.002(b).  Good
faith, in the context of an appropriate law enforcement authority, means that:  “(1) the employee believed the governmental
entity was authorized to (a) regulate under . . . enforce . . . (b) investigate
or prosecute a violation of . . . law; and (2) the employee’s belief was
reasonable in light of the employee’s training and experience.”  Tex.
Dept. of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002).
Report to the Ethics Advisor
            On appeal, the OAG challenges the
reasonableness of Rodriguez’s belief that the Ethics Advisor, as head of the
Fraud, Waste, and Abuse Prevention Program, and the OAG’s Criminal
Investigation Division were appropriate law enforcement authorities.[3]  Specifically, the OAG argues that Rodriguez’s
belief could not have been reasonable because the Ethics Advisor’s authority to
discipline employees internally did
not equate to authority to regulate under, enforce, prosecute, or investigate
criminal violations, which, the OAG maintains, Rodriguez knew were reported to
and handled by an outside law
enforcement agency.  We are not persuaded
by this argument.
            The evidence supports Rodriguez’s
belief that the Ethics Advisor was an appropriate law enforcement authority.  Rodriguez produced the OAG’s “Agency
Integrity Program” policy providing for the promulgation of rules, practices,
and standards to “reduce the risk of fraud, waste, and abuse in the
workplace.”  The policy covers
“unethical, fraudulent, and/or illegal conduct” and is “designed to provide a
method to identify, prevent, detect, and report” such conduct.  As defined by the policy, fraud is “the use
of one’s occupation for obtaining personal benefit (including benefit for
family/friends) through the deliberate misuse or misapplication
of the OAG’s resources or assets.” 
[Emphasis in original].  The
policy requires an employee to report unethical, fraudulent, and/or illegal
conduct to certain identified individuals, including the employee’s immediate
supervisor and the Ethics Advisor.[4]  Indeed, the policy mandates that any person
who receives a report of fraud has a duty to refer the matter immediately to the
Ethics Advisor, the person designated by the Attorney General as the individual
“having the exclusive authority” to investigate “activity which possible
constitutes a violation of law. . . .” 
In his deposition, the Ethics Advisor testified that “employees can
report fraud, waste, and abuse . . . directly to me.”  And as we have already noted, the Ethics
Advisor asked the OAG’s Deputy Attorney General for Criminal Justice for his
assistance in investigating the fraud allegation because it “might involve criminal
conduct.”
            Essentially, Rodriguez produced
evidence establishing that OAG employees were not just instructed but were required to
report unethical, fraudulent, and/or illegal conduct to their supervisors and
the Ethics Advisor.  Rodriguez also produced
evidence that the Ethics Advisor had the authority to investigate allegations
of fraud involving criminal conduct, and, in fact, exercised that authority
here.  In light of the foregoing and indulging
all reasonable inferences in favor of Rodriguez, we conclude that she produced
evidence of her good faith belief that the Ethics Advisor was authorized to
investigate criminal laws related to fraud and that her belief was reasonable
in light of her training and experience.[5]  See
Moreno v. Tex. A&M Univ.-Kingsville, 339 S.W.3d 902, 912-13
(Tex.App.--Corpus Christi 2011, pet. filed)(holding that whistleblower produced
sufficient evidence of her good faith belief by reporting suspected violations
of the tuition waiver provision, as required by university policy, to
university president who had the power to enforce compliance with the tuition
waiver provision); Univ. of Tex. Sw. Med.
Ctr. At Dallas v. Gentilello, 317 S.W.3d 865, 871 (Tex.App.--Dallas 2010,
pet. granted)(holding that whistleblower produced sufficient evidence of good
faith by reporting Medicaid and Medicare violations to his supervisor who set
policies and had power to investigate violations); see also Tex. Dep’t of Human Servs. v. Okoli, 317 S.W.3d 800, 811
(Tex.App.--Houston [1st Dist.] 2010, pet. filed)(holding that whistleblower
produced sufficient evidence of his good faith belief by citing to an internal
policy requiring him to report misconduct to his supervisor and to other
individuals situated higher in the agency’s organizational structure).
Nor
are we persuaded by the OAG’s reliance on Needham
and Univ. of Tex. at San Antonio v. Wells,
No. 04-10-00615-CV, 2011 WL 446642 (Tex.App.--San Antonio Feb. 9, 2011, no
pet.)(mem. op.) and upon a specific sentence in the OAG’s “Agency Integrity
Program” policy.  Needham and Wells hold
that an employee does not have a reasonable belief that his or her employer is
an appropriate law enforcement authority if the employer itself does not have
the authority to do anything about reported illegal activities other than to
conduct an internal investigation, to discipline its employees, and to refer
reports of illegal activities to other entities.  See
Needham, 82 S.W.3d at 321 (holding that Texas Department of Transportation
employee who believed that his superiors would forward his report of driving
while intoxicated to another entity for prosecution did not have a reasonable
belief that the department was an appropriate law enforcement authority); Wells, 2011 WL 446642, at *2 (holding
that university employee who was told that her reports of fraud would have to
be investigated by the police, not by the particular department to which she
reported the allegations, did not have a reasonable belief that the university
was an appropriate law enforcement authority).
Rodriguez’s
allegations do not involve the mere internal discipline imposed against Galindo
for fraudulently naming a dependent. 
Rather, Rodriguez alleged that Galindo violated the criminal law and
produced evidence that the Ethics Advisor had the authority to investigate
whether Galindo had violated the law.  Contrary
to the OAG’s assertion, the OAG’s “Agency Integrity Program” policy does not mandate
that allegations of criminal violations be reported to and handled by an
outside law enforcement agency.  Rather,
the policy discusses the range of penalties an employee who violates the “Agency
Integrity Program” might face, which, in the case of “potential criminal
offenses,” includes the possibility of a report to “the appropriate law
enforcement agency.”  Having determined
that Rodriguez produced evidence that she had a good faith belief that the
OAG’s Ethics Advisor was authorized to investigate criminal laws related to
fraud and that her belief was reasonable in light of her training and
experience, we hold that the trial court did not err in denying the OAG’s plea
to the jurisdiction.  We affirm the
judgment of the trial court below.
 
 
August 22, 2012
                                                                        ANN
CRAWFORD MCCLURE, Chief Justice
 
Before McClure, C.J., Rivera, J., and Chew,
C.J. (Senior)
Chew, C.J. (Senior)(Sitting by Assignment)




[1]
After investigators from the OAG’s Criminal
Investigation Division contacted Rodriguez in response to her anonymous
report and, while they were interviewing her, Rodriguez reported her suspicions
that Galindo had violated the law.


[2]
See
Tex.Civ.Prac.&Rem.Code
Ann. § 51.014(a)(8)(West Supp.
2012)(permitting state agency to file interlocutory appeal from denial of plea
to the jurisdiction).


[3]
The OAG also challenges the adequacy of Rodriguez’s reports to her immediate
supervisors and the Ombudsman.  However,
Rodriguez did not identify these individuals in her Second Amended Petition or
in her original and supplemental responses to the OAG’s plea to the
jurisdiction as individuals whom she believed were appropriate law enforcement
authorities.  She merely identified them
as individuals to whom she reported her suspicions.  While we
can consider evidence in determining a plea to the jurisdiction, the evidence
must be relevant to the jurisdictional issue. 
See Bland Indep. Sch. Dist.,
34 S.W.3d at 554.  Since Rodriguez
did not identify her immediate supervisors and the Ombudsman as “appropriate
law enforcement authorities,” the status of these individuals as such is
irrelevant to the jurisdictional inquiry. 
We therefore decline to address the OAG’s challenge to the adequacy of
Rodriguez’s report to her supervisors and the Ombudsman.


[4]
The policy permits an employee to report unethical, fraudulent, and/or illegal conduct anonymously.
 


[5]
Because we conclude that Rodriguez’s good faith belief that the Ethics Advisor
was an appropriate law enforcement authority was reasonable, we need not
address Rodriguez’s report to the OAG’s Criminal Investigation Division.  See
Tex.R.App.P. 47.1 (requiring
appeal court to issue an opinion that is as brief as possible, but that
addresses every issue raised and necessary
to dispose of the appeal).


