

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
YUSUF ELIAS FARRAN,
 
                                   
  Appellant,
 
v.
 
CANUTILLO INDEPENDENT SCHOOL
DISTRICT,
 
                                    Appellee.
  
 


 
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                  No. 08-10-00289-CV
 
                         Appeal from
 
384th District
  Court
 
of El Paso County,
  Texas
 
(TC # 2010-416)




 
 


 
 


 
 



                                                                  O
P I N I O N
 
            Yusuf Elias Farran appeals from an
order granted a plea to the jurisdiction filed by the Canutillo Independent
School District and dismissing Farran’s claims with prejudice.  We affirm in part and reverse and remand in
part.
 
FACTUAL SUMMARY
            CISD hired Farran in 2004 for the
position of Construction Administrator and he was later promoted to Executive
Director of Facilities and Transportation.[1]  Under his contract, Farran could only be
terminated for good cause.  While supervising
the Maintenance Department, Farran reported to the Superintendent, Assistant
Superintendent, and the Board incidents of alleged employee theft and
falsification of time cards.  Several
employees were discharged or resigned as a result of Farran’s reports.  
In May, June, July, August, September, and October of 2008, Farran
notified the Superintendent, Assistant Superintendent, the CISD internal
auditor, and the Board that Henry’s Cesspool Services was not removing
grease-trap waste as required by its contract and it was being paid an amount which
exceeded the contracted amount.  Farran
also reported that CISD’s disposal of grease trap waste violated City of El
Paso Ordinances and the City’s Public Services Board’s Rules and Regulations
No. 15.  Farran was concerned that the
grease would damage the wastewater treatment plant under his management.  Some of the school board trustees began
reacting negatively to the reported violations and questioned Farran’s motives
and one of the trustees allegedly told Farran that if he valued his job, he
would stop making his accusations about the grease trap issues.  In January and February 2009, Farran reported
to the Superintendent that CISD was continuing to violate Regulation No. 15 and
its grease trap permits, and it was continuing to pay Henry’s Cesspool for
services not actually performed.  
In late February or early March 2009, Superintendent Padilla questioned
Farran about personal telephone calls allegedly made during business hours on
school equipment.  Farran denied doing
anything improper.  Padilla subsequently notified
Farran he had been suspended with pay during an investigation into allegations
of misconduct.  The letter prohibited
Farran from going onto CISD property, and talking with any CISD employees or
Board members without the Superintendent’s permission.  The Board of Trustees recommended on May 28,
2009 that Farran be terminated.  The
following day, CISD notified him of his proposed termination and the grounds
for the decision.  The letter advised
Farran that he could request a due process hearing before the appointed hearing
office, Patricia Palafox, and the Board would make a final decision based on
the written recommendation from the hearing officer.  If he failed to request a hearing, the Board
could proceed to make a final decision. 
Farran requested a hearing and it was held on August 27 and 28,
2009.  The hearing officer determined
that good cause existed to sustain CISD’s termination of Farran’s employment
contract.  On September 21, the Board
accepted the hearing officer’s recommendation and terminated Farran’s
employment.  CISD notified Farran of the
Board’s decision the following day.  
Farran filed suit alleging that CISD terminated him in violation of the
Texas Whistleblower Act, breached his employment contract by firing him without
good cause, and discharged him in violation of public policy after he refused
to perform an illegal act.  CISD filed a
plea to the jurisdiction with respect to all three claims.  The trial court granted the plea to the
jurisdiction and dismissed Farran’s claims with prejudice.  
PLEA TO THE JURISDICTION
            Farran
raises five issues on appeal challenging the trial court’s order granting the
plea to the jurisdiction.  Rather than
addressing the issues in order, we will consider them as they pertain to his
causes of action beginning with his claim made pursuant to the Texas
Whistleblower Act.
Standard of Review
A plea to the jurisdiction is a dilatory plea by which a party challenges
the court’s authority to determine the subject matter of the action.  Harris
County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.
2000).  The plaintiff bears the burden to
allege facts affirmatively proving that the trial court has subject matter
jurisdiction.  Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587
(Tex. 2001).  Whether a party has alleged
facts that affirmatively demonstrate a trial court’s subject matter
jurisdiction and whether undisputed evidence of jurisdictional facts
establishes a trial court’s jurisdiction are questions of law which we review de novo.  Texas
Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004); Texas Natural Resource
Conservation Commission v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).  
When a plea to the jurisdiction challenges the
existence of jurisdictional facts, the trial court must review the relevant
evidence to determine whether a fact issue exists.  Miranda,
133 S.W.3d at 226.  When reviewing a
trial court’s ruling on a challenge to its jurisdiction, we consider the
plaintiff’s pleadings and factual assertions, as well as any evidence in the
record that is relevant to the jurisdictional issue.  City of
Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); Bland ISD, 34 S.W.3d at 555.  If the evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot grant the plea,
and the issue must be resolved by the trier of fact.  Miranda,
133 S.W.3d at 227–28; see City of Elsa,
325 S.W.3d at 626.  On the other hand, if
the evidence is undisputed or fails to raise a fact question, the trial court
must rule on the plea as a matter of law.  Miranda,
133 S.W.3d at 228.
TEXAS WHISTLEBLOWER ACT
            Issues Two, Three, and Four are
related to Farran’s claim that he was terminated in violation of the Texas
Whistleblower Act.  CISD asserted in the
plea that the trial court lacked jurisdiction because Farran failed to allege a
report in good faith to an appropriate law enforcement authority as required
for recovery under the Act. 
Additionally, CISD argued that Farran’s report to the FBI made in July
2009 could not have caused his termination since it occurred after he had
already been recommended for termination.
In general, school districts such as CISD are
immune from suit and liability unless the legislature expressly waives sovereign
immunity.  State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).  The Whistleblower Act waives CISD’s immunity
from suit for Farran’s claim if he alleged sufficient facts to establish that
he was a public employee and he in good-faith reported a violation of law by CISD
or another public employee to an appropriate law enforcement authority.  See Tex.Gov’t Code Ann. §554.002 (West 2004);
City of Elsa, 325 S.W.3d at 625; Lueck, 290 S.W.3d at 882-83.  While the Whistleblower Act does not
explicitly require an employee to prove a causal link between the report and
the subsequent discrimination, the Supreme Court has held that the plaintiff is
required to show that after he reported a violation of the law in good faith to
an appropriate law enforcement authority, the employee suffered discriminatory
conduct by his employer that would not have occurred when it did if the
employee had not reported the illegal conduct.  City of Fort
Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000); see City of El Paso v.
Parsons, 353 S.W.3d 215, 225 (Tex.App.--El Paso 2011, no pet.).
Good
Faith Reports to Appropriate Law Enforcement Authority
In
Issue Two, Farran contends that his reports of violations to CISD’s
superintendent, internal auditor, and school board were reports to appropriate
law enforcement authorities because these persons were authorized to enforce
and regulate CISD’s compliance with the laws alleged to have been
violated.  In Issue Three, Farran argues
that his reports made to the superintendent, internal auditor, and the school
board were reports to persons or entities who he in good faith believed were
appropriate law enforcement authorities. 

Under Section 554.002(b), “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.  Tex.Gov’t Code Ann. § 554.002(b).  It is not enough that a governmental entity
has general authority to regulate, enforce, investigate, or prosecute.  Texas
Department of Transportation v. Needham, 82 S.W.3d 314, 320 (Tex. 2002).  The issue is whether the governmental entity
is authorized to regulate under or enforce the law alleged to be violated in
the report.  Tex.Gov’t Code Ann. § 554.002(b); Needham, 82 S.W.3d at 320.  Consequently, the particular law the employee
reported to have been violated is critical to the determination.  Needham,
82 S.W.3d at 320.  Further, the law
alleged to have been violated must be a state or federal statute, an ordinance
of a local governmental entity, or a rule adopted under a statute or
ordinance.  See Tex.Gov’t Code Ann. §
554.001(1).
A
determination that a governmental entity is not authorized to regulate under or
enforce the particular law at issue in a case does not necessarily end the
inquiry because a plaintiff may still obtain Whistleblower Act protection if he
in good faith believed that the governmental entity was an appropriate law
enforcement authority.  See Needham, 82 S.W.3d at 320.  In the context of section 554.002(b), “good
faith” means:
(1)   the
employee believed the governmental entity was authorized to (a) regulate under
or enforce the law alleged to be violated in the report, or (b) investigate or
prosecute a violation of criminal law; and
 
(2)   the
employee’s belief was reasonable in light of the employee’s training and
experience.  
 
Needham, 82 S.W.3d at 321.
The Reports Alleging Violations of City
Ordinances and PSB Rules
Farran’s
suit alleges that he reported to the superintendent, the internal auditor, and
the board of trustees that CISD’s disposal of grease trap waste violated City
of El Paso Ordinances and the City’s Public Services Board’s Rules and
Regulations No. 15.  Farran’s pleadings
stated that he believed in good faith that these authorities are “appropriate
law enforcement authorities” under the Whistleblower Act.
CISD
does not have authority to regulate under or enforce city ordinances or
regulations.  Farran’s evidence submitted
in response to CISD’s plea to the jurisdiction shows that the PSB has the duty
to investigate and prosecute non-compliance with these ordinances and
regulations.  Farran does not allege that
he ever made a report to the PSB or that CISD discharged him because he made
such a report.  Consequently, Farran’s
pleadings and jurisdictional evidence submitted to the trial court
affirmatively show he did not make the reports related to the alleged grease
trap violations to an appropriate law enforcement authority.  See Lueck,
290 S.W.3d at 885 (the plaintiff’s report to his supervisor who did not have
the authority to regulate or enforce the laws in question were not made to an
appropriate law enforcement authority).  
There
is no evidence that Farran subjectively believed that the superintendent, the
internal auditor, and the board of trustees were authorized to regulate under
or enforce the City’s ordinances and the PSB’s rules.  Even assuming Farran had such a belief, he
did not produce any evidence that his belief was reasonable in light of his
training and experience.
The
Reports Alleging Violations of Criminal Laws
            Farran’s suit also alleges that he
made reports to CISD’s superintendent and the board of trustees regarding the
theft and attempted theft of CISD’s tools, equipment, parts, and construction
materials and falsification of time cards.  He identifies one of the laws violated as Section
31.03 of the Texas Penal Code.[2]  Under Section 31.03 of the Penal Code,
a person commits an offense if he unlawfully appropriates property with intent
to deprive the owner of property.  Tex.Penal Code Ann. § 31.03 (West Supp.
2011).  CISD does not have authority to
regulate under or enforce Texas theft laws nor does it have authority to
investigate or prosecute a violation of criminal law.  See
Tex.Gov’t Code Ann. § 554.002(b)(1),
(2).  While CISD has authority to
regulate and investigate its employees’ conduct in order to carry out its
internal disciplinary procedures, the Supreme Court has held that is an
insufficient basis to find that a governmental entity is an appropriate law
enforcement authority under Section 554.002(b). 
See Needham, 82 S.W.3d at 320.  Consequently, Farran did not make the theft
reports to an appropriate law enforcement authority.  See Needham,
82 S.W.3d at 320 (finding TxDOT is not a governmental entity authorized to
regulate under, enforce, investigate, or prosecute DWI laws; therefore,
plaintiff’s report of another employee’s alleged commission of DWI was not made
to an appropriate law enforcement authority under Section 554.002(b)).  
There
is no evidence that Farran subjectively believed that the superintendent and
the board of trustees were authorized to regulate under or enforce Section
31.03, nor is there evidence that he believed they could investigate or
prosecute the violations of the theft law. 
Further, Farran did not present any evidence that such a subjective
belief would have been reasonable in light of his training and experience.
            Farran also alleged that he made a
report to Superintendent Padilla regarding an alleged conspiracy to tamper with
governmental records in violation of Section 37.10 of the Texas Penal Code.  In his pleadings, Farran stated that he was
present in Padilla’s office when she received a phone call from Letty Gonzalez,
a member of the Board of Trustees. 
Gonzalez asked Padilla if she would authorize the payment of back pay to
her brother-in-law, Rodolfo Gonzalez, related to his employment as interim lead
custodian at Canutillo Middle School in 2007 and 2008.  Farran told Padilla there was no
documentation to support the claim for back pay because the principal of the
school had never submitted a request for Rodolfo Gonzalez to be made Interim
Lead Custodian.  In December 2008,
Padilla asked Farran to sign a “Personnel Action Form” to support Gonzalez’s
claim for back pay, but he refused. 
Padilla informed Letty Gonzalez that Farran refused to sign the
form.  In January 2009, CISD paid Rodolfo
Gonzalez the amount of his claim for back pay. 
Farran alleged that his refusal to sign the “Personnel Action Form” and
his explanations for his refusal constituted a report to Padilla of an ongoing
criminal conspiracy to commit the crime of tampering with a governmental
record.  
Under
Section 37.10(a)(1) of the Texas Penal Code, a person commits an offense if he
knowingly makes a false entry in, or false alteration of, a governmental
record.  Tex.Penal Code Ann. § 37.10(a)(1)(West 2011).  A person commits criminal conspiracy if, with
intent that a felony be committed he agrees with one or more persons that they
or one or more of them engage in conduct that would constitute the offense and
he or one or more of them performs an overt act in pursuance of the
agreement.  Tex.Penal Code Ann. § 15.02(a)(West 2011).  CISD does not have authority to regulate under
or enforce these penal statutes nor does it have authority to investigate or
prosecute a violation of criminal law.  See Tex.Gov’t
Code Ann. § 554.002(b)(1), (2). 
Consequently, Farran did not make the report alleging a criminal
conspiracy to an appropriate law enforcement authority.  See Needham,
82 S.W.3d at 320. 
As
was the case with the theft reports, there is no evidence that Farran
subjectively believed that Superintendent Padilla was authorized to investigate
or prosecute a criminal conspiracy offense. 
Further, Farran produced no evidence that such a subjective belief would
have been objectively reasonable in light of his training and experience.
The Reports
Alleging Financial Improprieties
            As
discussed above, Farran made reports of employee theft and time card
falsification to the superintendent and the board of trustees.  Farran argues that paying employees
for hours not worked is an improper expenditure of school funds in violation of Section 45.105 of the Texas Education Code and
Tex.Const. art. III, §§ 50, 51,
and 52, and Tex.Const. art. XI, §
3.  Farran further alleged that he
was discharged because he reported to the superintendent, internal auditor, and
the board of trustees that Henry’s Cesspool Services was not removing
grease-trap waste as required by its contract[3]
and it was being paid an amount which exceeded the contracted amount.  Farran contends that by paying Henry’s
Cesspool Services for services not performed, CISD violated Section 45.105 and
the Texas Constitution’s restrictions
on the expenditure of public funds for private purposes.  Farran argues on appeal that he had a good
faith belief that he made the reports to appropriate law enforcement
authorities.  
We
begin by observing that Farran’s brief does not contain any discussion
regarding Article XI, Section 3 of the Texas Constitution nor does he cite any
authority which might explain his reliance on this provision.[4]  An appellant’s brief must contain a clear and
concise argument for the contention made, with appropriate citations to
authorities and to the record.  Tex.R.App.P. 38.1(i).  Consequently, we conclude that this portion
of his argument is waived.  See City of Midland v. Sullivan, 33
S.W.3d 1, 10 n.6 (Tex.App.--El Paso 2000, pet. dism’d w.o.j.)(appellant failed
to brief complaint and thus waived appellate review of issue).
A school district’s trustees have the exclusive
power and duty to govern and oversee the management of the public schools of
the district.  Tex.Educ.Code Ann. § 11.151(b)(West 2006).  This duty is limited, however, because
Texas law restricts expenditures of public school funds except for statutorily
authorized purposes.  Tex.Educ.Code Ann. § 45.105 (West 2006).
 The Texas Constitution also limits the
use of public credit and funds for private purposes.  Article
III, Section 50 bars the Legislature from extending the credit of the State to
private individuals for private purposes. 
Tex.Const. art. III, § 50;
Cross v. Dallas County Flood Control
Dist. No. 1, 773 S.W.2d 49, 51
(Tex.App.--Dallas 1989, no writ).  Article
III, sections 51 and 52 of the Texas Constitution prohibit the expenditure of
public funds for private gain. Tex.Const.
art. III, §§ 51, 52; Graves v. Morales,
923 S.W.2d 754, 757 (Tex.App.--Austin 1996, writ denied). The purpose of the
constitutional provisions barring transfers to private individuals is to
prevent the gratuitous application of public funds to any individual.  Graves,
923 S.W.2d at 757, citing Edgewood Independent School District v. Meno,
893 S.W.2d 450, 473 (Tex. 1995).  
In his first affidavit submitted as part of his
response to the plea to the jurisdiction, Farran stated that he believed the
superintendent had authority to investigate his reports and “to enforce
the laws that were being violated by taking action to ensure the District did
not pay for services that were not actually provided, and to ensure compliance
with laws.”  Farran reported violations
to the internal auditor, Martha Carrasco, in order for her to investigate the
violations and report them to the school board. 
He also made reports directly to the school board because he believed
the board could take action to stop paying Henry’s Cesspool Services when the
company was not performing its obligations. 

Farran
filed a second affidavit in which he averred that “[c]omplaints of violations
of law could be made to Canutillo ISD by making the complaints directly to
supervisors or to the Canutillo ISD hotline.” 
Additionally, Farran stated that reports of violations of law were
channeled to the internal auditor who would investigate and report her findings
to the superintendent and the board of trustees.  The internal auditor would make
recommendations to the board of trustees and the board would vote on whether or
not to approve the recommended action. 
After Farran reported to the superintendent and board of trustees that
CISD was paying Henry’s Cesspool Services for services that had not been
provided, the internal auditor told him the board of trustees had asked her to
investigate.  Farran then reported the
violations to the internal auditor as part of her investigation.  The foregoing evidence demonstrates that
Farran subjectively believed that the superintendent, internal auditor, and
school board trustees were appropriate law enforcement authorities for purposes
of reporting improper expenditures of school funds.
With
respect to the objective part of the test, Farran offered evidence that the
internal auditor’s responsibilities include assisting in the investigation of
any suspected fraudulent activities within the school district.  The superintendent’s duties include
maintaining a system of internal controls to deter and monitor for fraud or
financial impropriety in the school district. 
CISD has written procedures for employee complaints or grievances.  The complaints proceed through three levels
beginning with a written complaint to be addressed by the lowest level
administrator with authority to remedy the problem (Level One).  If the superintendent is the only
administrator with authority to address the issue, the complaint may begin at
Level Two.  The complaint proceeds to a
Level Two conference with the superintendent if the employee did not get the
relief requested in Level One.  If the
employee is unsuccessful in Level Two, the complaint proceeds to Level Three
which is a meeting before the board of trustees.  The procedure specifically addresses what it
terms as Whistleblower complaints:
Whistleblower
complaints shall be filed within the time specified by law.  Such complaints shall first be filed in
accordance with LEVEL TWO, below.  Time
lines for the employee and the District set out in this policy may be shortened
to allow the Board to make a final decision within 60 days of the initiation of
the complaint.  
 
The procedure
also addresses complaints against supervisors and provides that complaints
alleging a supervisor’s violation of law may be made to the superintendent
beginning at Level Two, and a complaint alleging a violation of law by the
superintendent may be made directly to the Board beginning at Level Three.  
            Farran also presented evidence that
CISD has a “compliance hotline program” which provides a mechanism for employees
and citizens to report an issue or concern related to waste, fraud, abuse, or
unethical behavior.  Reports are made by
telephone or by submitting a written report online.  The written description of the program on
CISD’s website advises employees that:
The Compliance
Hotline Program is not expected to replace our existing internal reporting
structure; rather it is a tool meant to supplement the mechanism we currently
have in place.  Any employee who has an
issue or concern related to waste, fraud, abuse, or unethical behavior must
report it through the proper channels as specified in our policies.  However, if that is not feasible, the hotline
is provided as a communication option.
 
The online
reporting form advised citizens and employees that:
The ongoing success
of Canutillo Independent School District’ is dependent upon our employees
conducting business with integrity and in full compliance with regulations,
legislation, and our own corporate operating policies and procedures.  Ethical and compliant business behavior that
reflects our corporate values is right for our employees, right for our
customers, right for our stakeholders, and right for our business.  Canutillo Independent School District depends
on you to safeguard our organization’s reputation and protect us from financial
and legal harm.  If you have observed
employee misconduct, speak up!
 
When making a
report online, the person making the report is required to choose a primary
issue that is being reported.  The form
lists numerous topics including “Misuse or Misappropriation of Assets.”
Given
the existence of CISD’s internal reporting structure and this hotline, as well
as the internal auditor’s response to Farran’s reports about the payments made
to Henry’s Cesspool Services, a fact issue exists as to whether Farran had an
objectively reasonable belief that the superintendent, internal auditor, and
board of trustees were appropriate law enforcement authorities to address his “Whistleblower
complaints” about time card falsification and the improper expenditure of
funds.  See Moreno v. Texas A & M
University-Kingsville, 339 S.W.3d 902, 910-13 (Tex.App.--Corpus Christi
2011, pet. filed)(state university employee reported to university president
that supervisor had violated out-of-state tuition waiver law and was
subsequently terminated; court of appeals held that genuine issue of material
fact existed as to whether employee had reasonable belief that president was an
appropriate law enforcement authority where the university had a policy which
required employees to report suspected fraudulent incidents or practices to her
supervisor, the university president, or the internal auditor); University of Texas Southwestern Medical
Center at Dallas v. Gentilello, 317 S.W.3d 865, 870-71 (Tex.App.--Dallas
2010, pet. granted)(doctor employed by UT Southwestern reported to clinical
department chair that resident doctors were treating and performing surgical
procedures on patients without supervision of an attending physician in alleged
violation of Medicare and Medicaid rules and regulations; held that fact issue
existed whether doctor had a good faith belief that he reported violations to
an appropriate law enforcement authority where evidence showed that clinical
department chair set the policies regarding the presence of attending
physicians and had the power to internally investigate Medicare and Medicaid
violations).  Consequently, the trial
court erred by granting the plea to the jurisdiction as it related to this
aspect of the Whistleblower claim.  We
overrule Issue Two, but sustain Issue Three.
Causal Connection
In
Issue Four, Farran asserts that there is a causal connection between his report
to the FBI and his discharge.  In order
to show causation, a public employee must show that after he reported a violation of law in good faith to an appropriate
law enforcement authority he suffered an adverse employment decision by his
employer that would not have occurred when it did if the employee had not
reported the illegal conduct.  Zimlich, 29 S.W.3d at 67.  In July 2009, Farran reported to the
FBI that Henry’s Cesspool Services had been billing CISD for services not
rendered and CISD had been paying those bills. 
This report occurred several weeks after the Board notified Farran of
his proposed termination and the grounds for the decision.  After Farran made the report to the FBI, he
had a due process hearing before the appointed hearing office, Patricia
Palafox, and Palafox determined that good cause existed to sustain CISD’s
termination of Farran’s employment contract. 
The Board subsequently accepted Palafox’s recommendation and terminated
Farran’s employment.  These factual
allegations do not reasonably support a finding that Farran’s termination would
not have occurred when it did if he had not made the report to the FBI.  Issue Four is overruled.
BREACH OF EMPLOYMENT CONTRACT
            In Issue One, Farran argues that he
was not required to appeal to the commissioner of education in order to exhaust
his remedies.  Farran’s suit alleged that
CISD breached the employment contract by discharging him without good
cause.  Section 7.057(a)(2)(B) of the
Texas Education Code provides that a person may appeal in writing to the
commissioner of education if the person is aggrieved by actions or decisions of
any school district board of trustees that violate a provision of a written
employment contract between the school district and a school district employee
if a violation causes or would cause monetary harm to the employee.  Tex.Educ.Code
Ann. § 7.057(a)(2)(B).  Generally,
Texas requires an aggrieved party to first exhaust all remedies provided under
the statutory administrative scheme if the subject matter involves questions of
fact.  Ysleta Independent School District v. Griego, 170 S.W.3d 792, 795
(Tex.App.--El Paso 2005, pet. denied), citing
Mission Independent School District v. Diserens, 144 Tex. 107, 188 S.W.2d
568, 570 (1945); see Barrientos v. Ysleta Independent School
District, 881 S.W.2d 159, 160 (Tex.App.--El Paso 1994, no writ).  Requiring exhaustion of administrative
remedies is not meant to deprive an aggrieved party of any legal rights. It is
meant, rather, to provide an orderly procedure by which aggrieved parties may
enforce those rights.  Griego, 170 S.W.3d at 795.  An employee who alleges that a school district
wrongfully terminated an employment contract must apply to the school
authorities for relief before filing suit in the district court.  Id.
 Texas law gives the commissioner of education
the power to reverse a termination or contract nonrenewal on appeal.  Id.
The
record reflects that a fact issue exists with respect to whether CISD had good
cause to terminate Farran.  Consequently,
Farran was required to exhaust his administrative remedies pursuant to Section
7.057 of the Education Code before filing suit. 
The trial court did not err by granting the plea to the jurisdiction
with respect to the breach of contract claim. 
Issue One is overruled.
DISCHARGE IN VIOLATION OF PUBLIC POLICY
In his final issue, Farran asks the Court to create a new common-law
“public policy cause of action” for government employees discharged solely for
refusing to perform an illegal act.  In
December 2008, an employee claimed he was owed backpay for work performed while
acting as the Interim Lead Custodian in 2007 and 2008.  Farran refused to sign a personnel action
form to support the employee’s claim for backpay and he believed the backpay
was not justified.  Farran asserts that
he was discharged for refusing to commit the criminal offense of tampering with
a governmental record.  
The
Supreme Court’s decision in Sabine Pilot
Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) created a narrow
exception to the employment-at-will doctrine by permitting an at-will employee
to maintain a cause of action for wrongful discharge if the employee was
discharged solely because he refused to perform an illegal act carrying
criminal penalties.  The Sabine Pilot exception does not apply to
Farran because he is not an at-will employee, but he asks that we extend the
exception to “just cause” employment relationships.  The Dallas Court of Appeals addressed the
same issue in Simmons Airlines v.
Lagrotte, 50 S.W.3d 748 (Tex.App.--Dallas 2001, pet. denied).  Lagrotte, a commercial airline pilot, was
terminated after he refused to pilot a flight from Dallas to Houston due to
severe icing conditions.  Lagrotte was
protected by a collective bargaining agreement and could not be terminated
without just cause.  A jury found that
Simmons Airlines acted with malice in terminating Lagrotte for the sole reason
that he refused to perform an illegal act and the trial court entered judgment
in accordance with the jury’s verdict. 
Simmons argued on appeal that the trial court erred by extending the Sabine Pilot exception to apply to a
“just cause” employment relationship.  Simmons, 50 S.W.3d at 750.  Similar to the argument made by Farran,
Lagrotte urged on appeal that public policy demanded that the Sabine Pilot exception apply equally to
“just cause” employees.  Id. at 752.  The Dallas Court of Appeals refused to extend
Sabine Pilot because “[i]t is not for
an intermediate appellate court to undertake to enlarge or extend the grounds
for wrongful discharge under the employment-at-will doctrine.”  Id.  We believe the Dallas Court of Appeals
analysis is correct.  Accordingly, we
decline to extend the Sabine Pilot
exception to Farran’s “just cause” employment relationship.  Even if the cause of action existed, CISD has
sovereign immunity unless the Legislature has expressly waived it.  See Lueck, 290 S.W.3d at 880.  Farran has not shown that the Legislature has
waived CISD’s sovereign immunity.  Issue
Five is overruled.  
Having
sustained Issue Three in part, we reverse the order granting CISD’s amended plea
to the jurisdiction but only with respect to the claim made under the
Whistleblower Act regarding time card falsification and payments made to
Henry’s Cesspool Services.  Having
overruled Issue Three in part, we affirm the portion of the trial court’s order
granting the plea to the jurisdiction as it pertained to the remainder of the
Whistleblower Act claim.  Having
overruled Issues One, Two, Four, and Five, we also affirm the portion of the
trial court’s order granting the plea to the jurisdiction as it pertained to the
breach of contract and public policy tort claims.  The cause is remanded to the trial court for
further proceedings consistent with this opinion.
 
June 13, 2012                                                  __________________________________________
ANN CRAWFORD McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior)
Chew, C.J. (Senior), not participating




[1]  The factual summary is taken from Farran’s
pleadings and the evidence submitted in connection with the plea to the
jurisdiction.


[2]  Farran also identifies provisions of the Texas
Constitution and Section 45.105 as laws violated by the theft and falsification
of time cards.  We will address this
argument in another section of the opinion.


[3]  Farran’s reports to CISD and his July 2009
report to the FBI alleging that Henry’s Cesspool Services was not performing
its obligations under its contract with CISD is not a report about a violation
of law committed by a public employee or CISD. 
See Tex.Gov’t Code Ann. § 554.002.  Consequently, this portion of his reports
does not fall within the reach of the Texas Whistleblower Act.
 


[4]  Appellant cites Tex.Att’y Gen.Op. MW-89 (1979) in support of his
argument.  MW-89 discusses Article III,
Sections 50, 51 and 52, but does not address Article XI, Section 3.


