      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00244-CV



                       Texas Department of Criminal Justice, Appellant

                                                  v.

                                   Edward McElyea, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-01-003776, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                                           OPINION


               The Texas Department of Criminal Justice appeals a judgment entered pursuant to

a jury verdict finding the Department liable to Edward McElyea for violations of the Texas

whistleblower statute and awarding McElyea actual damages and attorney’s fees. See Tex. Gov’t

Code Ann. § 554.002 (West 2004). In its sole issue on appeal,1 the Department contends that legally

and factually insufficient evidence was presented at trial to support findings that McElyea reported

a violation of law in good faith and that his report was causally linked to the decision not to rehire

him after a reduction in force eliminated his position at the Department. We will affirm the trial

court’s judgment.




       1
         The Department raised a second issue related to the jury charge in its initial brief, but
withdrew that issue in its reply brief.
                                         BACKGROUND

               McElyea began working for the Department in 1984 as an investigator in the Internal

Affairs Division.2 The Internal Affairs Division investigated the conduct of Department employees,

including complaints of excessive use of force by prison employees against inmates. During his

tenure with the Internal Affairs Division, McElyea received a number of promotions: in 1985, he

was promoted to assistant regional manager; in 1989, he was promoted to regional manager; and in

1994, he was promoted to multi-regional administrator, the position that he retained until its

elimination in May 2001. McElyea was never disciplined as an employee of the Department. All

the witnesses who expressed an opinion testified that McElyea was a good employee.

               Around February 27, 2001, McElyea had a conversation with Fred Rhea, a peace

officer for the Department, in which Rhea told McElyea that Terry Cobbs, another Department peace

officer, “had called up Fred and given him an assignment to work” a job providing security for a

wealthy Houston family that was visiting the central Texas area. Cobbs had been working for the

family for some time, but was unavailable for that particular assignment. Rhea told McElyea that

he had been paid $500 for the job. McElyea did not inquire further about the security job, and the

conversation moved to another subject.

               The following day, McElyea decided that he needed to report Cobbs’s conduct to his

superiors because the Department’s code of ethics required employees to “report any corrupt or

unethical behavior which could affect employees, offenders, or the integrity of the TDCJ.” McElyea




       2
        Before starting with the Department, McElyea worked as a police officer for the City of
Waco and served as the chief of police for the City of Rosebud.

                                                2
testified that he believed that Cobbs had violated Department policies concerning approval of off-

duty jobs and use of the Department commission in connection with off-duty jobs3 and also

potentially violated the Private Security Act4 and state law governing the use of state vehicles.5 After

a management conference, McElyea approached the three people in his chain of command that were

above him in the organization—John McAuliffe, the Inspector General for the Department,6 Leon

Guinn, the director of the Internal Affairs Division, and Claude Williams, the deputy director of the

Internal Affairs Division—to discuss his conversation with Rhea and McElyea’s concerns about

Cobbs’s conduct violating state law and Department policies.

                According to Guinn, “McAuliffe seemed to be very agitated and upset at the

allegation.” Guinn stated that he had three conversations with McAuliffe about McElyea’s

allegations and that each time McAuliffe seemed upset.7




       3
        Testimony indicated that obtaining legislative approval for commissioning Internal Affairs
employees as peace officers was a long and hard-fought process and that management was concerned
about any activities that might jeopardize the ability to commission employees.
       4
          See Tex. Occ. Code Ann. §§ 1702.001–.413 (West 2004 & Supp. 2006). The Private
Security Act regulates the provision of security services by private individuals and entities.
       5
         See Tex. Gov’t Code Ann. § 2113.013 (West Supp. 2006) (providing that state employees
may not use state vehicles for anything other than official state business unless they have been
authorized by the head of a state agency “to commute to and from work”).
       6
           The Department’s Office of the Inspector General oversaw the Internal Affairs Division.
       7
          McAuliffe testified, “I did not want to get into a situation where there was going to be an
allegation and counter-allegation, an allegation and counter-allegation that would get into a personal
level among our staff when I was trying to make an effort at the end of my tenure to, quote, unquote,
bring us together.”

                                                   3
               McAuliffe testified that shortly after McElyea’s oral report, he asked John Moriarty,

who supervised Cobbs and Rhea, to look into McElyea’s allegations. Cobbs authored two interoffice

communications on March 5, 2001. In the first, Cobbs described contacting Rhea regarding a job

for a family that required assistance with child care. In the second, Cobbs asked permission to hold

outside employment. In it, he stated that “[t]he employment includes ‘house sitting’ at a private

residence and assisting with child care on an as-needed basis.” At trial, Cobbs admitted that he was

the head of security for the family and had coordinated the activities of a sizeable cadre of off-duty

peace officers. Documents admitted into evidence at trial indicate that Cobbs had worked for the

family as head of security for several years prior to March 2001 and often worked as much as

32 hours per week.

               McAuliffe testified that during this inquiry, it came to his attention that fifteen to

twenty Internal Affairs employees held unapproved off-duty jobs. McAuliffe stated that he

instructed Moriarty to “find out who these people were, what their duties were and then to have them

put the proper request through their supervisors for approval to see if it would be approved that they

could work an extra job.” McAuliffe testified that he, Moriarty, and Guinn decided that this was the

appropriate course of action to respond to McElyea’s allegations rather than to open a large

investigation that would involve many Internal Affairs Division employees. McAuliffe testified that

he had some questions about Cobbs’s two interoffice communications—McAuliffe’s handwritten

notes on the documents indicate that he desired further information concerning whether the job

involved security or childcare, how often Cobbs was working, and “whether or not [Cobbs was]

required to be armed for childcare.” McAuliffe testified that Cobbs provided satisfactory answers



                                                  4
to the questions, although he could not recall any details, and that he did not make any further

inquiries about Cobbs.

               On March 12, 2001, in response to a request from McAuliffe, McElyea faxed to

McAuliffe an interoffice communication that stated,


       On or about February 27, 2001, Investigator Fred Rhea was in my office discussing
       various subjects of mutual interest. Investigator Rhea informed me that Investigator
       Terry Cobbs, who is assigned to the Gulf Coast Violent Offenders Fugitive Task
       Force, had contacted him regarding an off duty job. Investigator Rhea informed me
       that Cobbs was providing security to a wealthy individual who lived in Houston,
       Texas, and was being paid for it. Rhea further advised me that this unknown person
       had traveled to the San Antonio area and that Cobbs had requested that Rhea provide
       security for this person and Rhea did so. I informed you of this information on
       February 28, 2001, in the presence of Mr. Guinn. On March 12, 2001, you directed
       me to provide you with this information in writing, and this IOC fulfills that order.


The document went on to state that “[i]f these allegations are found to be true, Investigator Cobbs

has violated IAD and TDCJ Policy. In addition Cobbs may have violated state laws governing peace

officers that utilize their commission for off duty private security jobs.” McElyea included an

internet summary of the Private Security Act with his interoffice communication.

               Williams, who was McElyea’s direct supervisor at the time the allegations were made,

testified that he spoke with both McAuliffe and Moriarty about McElyea’s allegations shortly after

they were made. Williams stated that McAuliffe told him that McElyea “needs to back off of that,

that Mr. Moriarty was going to be the next Inspector General and you’ve got to let it go at that.”

Williams further testified, “Mr. Moriarty came to my office. He shut the door. And I could tell he

was very angry. He was red in the face. And he said, ‘You need to do something about McElyea.’”

Williams said that Moriarty warned that McElyea “needs to keep his nose out of things not his

                                                5
business and needs not to be writing IOCs [interoffice communications] on people that work for

me.” When Williams told Moriarty that he would talk to McElyea, Moriarty instructed, “Tell him

he doesn’t know who he’s fucking with.”

                 On April 2, 2001, an interoffice communication authored by McAuliffe and Guinn

concerning the use of state vehicles was distributed to all employees of the Office of the Inspector

General and the Internal Affairs Division. The document stated, among other things, that “[a]ll

personnel are reminded that State-owned and leased vehicles shall not be used for any purpose other

than official State business.” Guinn testified that the document was prepared as a “direct follow-up”

to McElyea’s allegations about Cobbs’s misuse of his state vehicle.

                 McElyea testified that he met with McAuliffe on April 26, 2001, and that he asked

McAuliffe “what he was going to do about this allegation involving part-time jobs and state vehicles,

and he told me he was not going to—that he was not going to do anything about it.”8 McElyea

stated,


          That’s when I told him that we were just in the middle of disciplining an employee
          for the very same thing and that, you know, I thought that it was a violation of law
          and a violation of policy, and I felt like he needed to do something. And that’s when
          he said he didn’t want to cause any problems for me.


McElyea testified that he also brought up the Private Security Act at the April meeting with

McAuliffe:




          8
         McElyea documented this conversation in a memo to the file that he authored shortly after
the conversation occurred.

                                                   6
       I told him that if Terry Cobbs was supervising and employing peace officers, he had
       to have a security officer’s license and that we were going to—we were going to get
       in trouble over that. . . . It was one of those deals that once it was out there and
       people know about it and it needed to be investigated, and he—you know, he got
       angry with me.


               Approximately one week later, McAuliffe retired from the Department, and on May

17, Moriarty was appointed to succeed McAuliffe as the Inspector General for the Department. On

May 22, McElyea was informed that the Internal Affairs Division was being reorganized and that

his position was being eliminated in connection with a reduction in force. The reorganization

eliminated the deputy director position and reduced the number of multi-regional administrators from

four to two. McElyea was told that all four multi-regional administrators would have to apply for

the two remaining positions, that he could continue in his current position at his current salary for

ninety days while he tried to secure other employment, and that he would receive a preference over

outside applicants for jobs within the Department because his position was eliminated as a result of

a reduction in force.

               Three of the four multi-regional administrators, including McElyea, applied for the

two remaining multi-regional administrator positions. Moriarty conducted the interviews and made

the selections. McElyea found out on June 15, 2001, that the two positions had been awarded to the

other two multi-regional administrators who applied. Around the same time, McElyea also applied

for an open director of investigations position in the Office of the Inspector General. Moriarty

awarded the position, which was one rank above the multi-regional administrator position that

McElyea had held, to another applicant. McElyea testified that on June 15, 2001, Moriarty called

him and told him “to pack [his] shit and get it out of the office by Monday.” In late July 2001,

                                                 7
McElyea was offered and accepted a position in the Department’s Parole Division. The job was not

a law enforcement position, was not within the Internal Affairs Division or the Office of the

Inspector General, and paid less than McElyea’s multi-regional administrator position.

               In February 2002, McElyea applied for an open regional manager position in the

Internal Affairs Division. Although McElyea had worked as a regional manager for the Internal

Affairs Division for around five years and had been promoted from that position, Moriarty awarded

the position to another applicant without conducting interviews.

               Moriarty testified that he would have done whatever it took to keep McElyea from

getting a job in the Internal Affairs Division after the reorganization:


       Q. If you had any say, he wasn’t going to get it?

       A. Right. Well, as far as if I had a choice between him and someone else that was
       qualified and the other person was loyal to me and wasn’t bad-mouthing me, I mean,
       I’d have to be a fool not to take that person.

       ....

       Q. And I’m glad you said that, because you’ve stated, haven’t you, that even if Mr.
       Rhoten’s [the other interviewee for the director of investigations position]
       background investigation had come back negative and you couldn’t have hired him,
       you probably would have vacated that board so that you wouldn’t have to hire Mr.
       McElyea?

       A. That was an option, yes.

       Q. And you probably would have done that?

       A. I could possibly have, yes.

       Q. You weren’t going to let him get that director’s position, were you?

       A. I’d be a fool to.

                                                  8
       ....

       Q. Again, there was no way that you were going to put Mr. McElyea in a regional
       manager position, correct?

       A. That’s correct.

       Q. Again, because you couldn’t trust him?

       A. I couldn’t trust him, and he—and I knew he was after me.

       Q. Even if Mr. Davis [the person eventually hired as regional manager] was
       disqualified because he had falsified his application, you wouldn’t have put Mr.
       McElyea into the position, would you?

       A. I probably would have vacated the board and got another board.

       Q. Found a way not to hire Mr. McElyea?

       A. That’s correct.


               After exhausting the Department’s grievance process, McElyea filed suit against the

Department on November 15, 2001, alleging that as a result of his good faith report of a violation

of law, his position was eliminated, he was not rehired as a multi-regional administrator, and he was

not hired as the director of investigations. McElyea filed an amended petition on July 22, 2002,

adding an allegation that he was not hired as a regional manager because of his good faith report of

a violation of law.

               A jury trial began on December 6, 2005, and lasted for four days. The trial involved

hotly disputed testimony on many factual issues and required the jury to make multiple credibility

determinations in reaching its verdict. The jury returned a verdict finding that the Department failed

to rehire McElyea as a multi-regional administrator and failed to hire him as a regional manager as



                                                  9
a result of McElyea’s good faith report of a violation of law. McElyea elected to receive damages

based on the jury’s finding with respect to the multi-regional administrator position, and the trial

court entered a judgment awarding McElyea $198,876.00 in damages and $124,187.50 in attorney’s

fees. This appeal followed.


                                           DISCUSSION

                Great care must be taken when addressing the important matter of a public

whistleblower suit. As this Court has noted,


        The State of Texas elevates public employees who report legal wrongdoing to a
        protected status as a matter of fundamental policy. The State views whistleblowing
        by a public employee as a courageous act of loyalty to a larger community, and we
        allow whistleblowing public employees to be made whole through lawsuits against
        the State.


Texas Dep’t of Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 396

(Tex. App.—Austin 2005, pet. denied).

                The Texas whistleblower statute is designed to enhance openness in government by

protecting public employees from retaliation by their employers when they report violations of law

in good faith and to secure lawful conduct on the part of those who direct and conduct the affairs of

government. City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex. App.—Austin 1996, writ

denied) (op. on reh’g). Because the statute is remedial in nature, we construe its provisions liberally.

University of Houston v. Barth, 178 S.W.3d 157, 162 (Tex. App.—Houston [1st Dist.] 2005,

no pet.).




                                                  10
                The whistleblower statute provides that “[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.”                Tex. Gov’t Code

Ann. § 554.002(a). Thus, McElyea was required to prove (1) that he was a public employee, (2) that

he reported a violation of law in good faith, (3) that the violation of law reported was committed by

his employing governmental entity or another public employee, (4) that the report was made to an

appropriate law enforcement authority, and (5) that his employing governmental entity took an

adverse personnel action against him because of the report.

                While the Department concedes that McElyea and Cobbs were public employees at

the time of McElyea’s report and that McElyea made his report to an appropriate law enforcement

authority, it contends that legally and factually insufficient evidence was presented at trial to support

findings that McElyea reported a violation of law in good faith and that his report was causally

connected to the adverse personnel action.

                In a legal-sufficiency review, this Court must credit evidence favorable to the verdict

if reasonable jurors could, disregard contrary evidence unless reasonable jurors could not, and

reverse the jury’s determination only if the evidence presented at trial would not enable reasonable

and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005). When reviewing the factual sufficiency of the evidence, we look at all the evidence

and set aside the jury verdict only if it is so contrary to the overwhelming weight of the evidence that

it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under either



                                                   11
standard of review, we must be mindful that the jurors are the sole judges of the credibility of the

witnesses and the weight to be given to their testimony. City of Keller, 168 S.W.3d at 819. Jurors

may choose to believe one witness and disbelieve another. Id. This Court must not impose its own

opinion to the contrary. Id. Resolution of conflicts in the evidence is within the province of the jury.

Id. at 820.


Good-Faith Report of a Violation of Law

                The Texas Supreme Court has held that in the context of the whistleblower statute,

good faith is analyzed using an objective standard and a subjective standard. Wichita County v. Hart,

917 S.W.2d 779, 784 (Tex. 1996). “‘Good faith’ means that (1) the employee believed that the

conduct reported was a violation of law and (2) the employee’s belief was reasonable in light of the

employee’s training and experience.” Id.

                The test’s first element—the “honesty in fact” element—ensures that a public

employee seeking a whistleblower-statute remedy believed that he was reporting an actual violation

of law. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002) (citing Hart,

917 S.W.2d at 784–85). The test’s second element ensures that even if the reporting employee

honestly believed that the reported act was a violation of law, the reporting employee only receives

protection if a reasonably prudent employee in similar circumstances would have believed that the

facts as reported constituted a violation of law. Id. (citing Hart, 917 S.W.2d at 785).

                There is no requirement that an employee identify a specific law when making a

report. Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642 (Tex. App.—Corpus Christi

2001, pet. denied). Nor does an employee need to establish an actual violation of law. Id. But there

                                                  12
must be some law prohibiting the complained-of conduct to give rise to a whistleblower claim. Id.

In other words, when an employee believes and reports in good faith that a violation has occurred,

but is wrong about the legal effect of the facts, he is nevertheless protected by the whistleblower

statute. Id.; Castaneda v. Texas Dep’t of Agric., 831 S.W.2d 501, 504 (Tex. App.—Corpus Christi

1992, writ denied); Lastor v. Hearne, 810 S.W.2d 742, 744 (Tex. App.—Waco 1991, writ denied).

               The Department contends that legally and factually insufficient evidence was

presented at trial to support a finding that McElyea reported a violation of law in good faith. The

Department urges that McElyea’s belief that a law was violated is not objectively reasonable in light

of his education and years of experience in law enforcement, that no existing law prohibits the

conduct that McElyea reported, and that because McElyea did not ask follow-up questions about or

investigate the facts surrounding Cobbs’s off-duty employment and use of his state vehicle, McElyea

did not have sufficient information to form an objectively reasonable belief that any law had been

violated.


Misuse of State Vehicles

               To a large extent, the trial of this case boiled down to a credibility contest between

the major players—a typical “he said, he said.” At trial the Department took the position, through

the testimony of Moriarty and McAuliffe, that McElyea never even mentioned the misuse of state

vehicles. In contrast, McElyea testified that he did report the misuse of state vehicles, and Leon

Guinn, the director of the Internal Affairs Division at the time of the report,9 not only corroborated

       9
        Guinn had substantial law-enforcement experience before coming to the Department: he
worked for the United States Customs Service for 33 years, retiring as special agent in charge of the
Houston field office.

                                                 13
McElyea’s testimony about his February report concerning state vehicles, but testified that the memo

that he authored with McAuliffe that was sent out to all Internal Affairs Division employees on April

2, 2001, concerning the use of state vehicles, was a direct consequence of McElyea’s report. The

memo warned, “All personnel are reminded that State-owned and leased vehicles shall not be used

for any purpose other than official State business.” The jury apparently found the testimony of

McElyea and Guinn, along with the April memo, to be more credible on this issue.

               On appeal, the Department now takes the position that McElyea’s report was too

equivocal—that it was phrased as a potential violation, not an actual violation—that McElyea needed

to investigate further, and that if he had done so, he would have discovered that no violation had

actually occurred.


       Adequacy of the Report

               According to the Department, McElyea failed to make the necessary showing that he

believed that a crime had been committed and has thus failed to satisfy the test’s subjective “honesty

in fact” element. Although the Department cites a selected excerpt from McElyea’s cross-

examination, which the Department contends demonstrates that McElyea wavered or equivocated

about whether a law was broken, the Department ignores McElyea’s testimony in which he

pinpointed the law that he believed that Cobbs had violated and unequivocally asserted that he made

the report:


       Q. Did you report that Terry Cobbs was violating state law by the use of his state
       vehicle to Mr. McAuliffe?

       A. Yes.

                                                 14
       Q. When?

       A. On February 28th and on March 12th.

       Q. Did you also talk to him about it in April?

       A. Yes.


               Also, the Department completely ignores the testimony of Leon Guinn, the director

of the Internal Affairs Division, who corroborated that McElyea reported his concern that Cobbs was

misusing a state vehicle while working a private job.

               Further, in a memo for the record dated April 26, 2001, McElyea stated,


       On this date I asked Mr. McAuliffe if I could speak to him before he left for the day.
       He came into my office at approximately 5:45PM. I asked him if he had received and
       reviewed the information concerning Investigator Cobbs working a part time job, in
       violation of IAD and TDCJ policy. He stated he asked John Moriarty to check into
       it and John advised him that Cobbs was merely “House-sitting” for someone. He
       admitted that Cobbs did violate TDCJ policy by not reporting that he had a part time
       employment [sic], but that he was not going to take action on it. He stated that others
       were also working part time and had not reported it. I asked him if this was a reason
       to not take disciplinary action because others were doing it [sic]. He stated that he
       did not want to cause “any mudslinging” and he did not want to cause any problems
       for me. I asked him why would this cause problems for me as I believed that I had
       acted in good faith as required by my position in this agency. He did not elaborate
       as to how this may cause me problems, when in fact Cobbs was the one who violated
       the policy. I further advised him that Investigator Fred Rhea had told me he was paid
       over $500.00 for providing personal security while the person was in the central
       Texas area, therefore I did not believe that Cobbs was telling the truth when he said
       that his job was merely “House-sitting”. I advised Mr. McAuliffe that Investigator
       Rhea told me that Cobbs was providing personal security for a wealthy family,
       therefore I believe that Cobbs was using his commission, as I believe that he was
       carrying his personal weapon while working this job. I also advised Mr. McAuliffe
       that I was concerned about Cobb’s [sic] use of the state vehicle and state time to
       work this part time job. Mr. McAuliffe told me he was concerned about this but that
       he did not intend to conduct an investigation or take any disciplinary action regarding
       this matter.

                                                 15
               This evidence would allow a reasonable jury to conclude that McElyea reported what

he believed was an actual violation of law, not a potential violation. No overwhelming evidence to

the contrary was presented.


       Failure to Investigate

               The Department next complains that because McElyea did not conduct an

investigation into Cobbs’s use of his state vehicle, McElyea did not have sufficient facts to make a

good-faith allegation that Cobbs had misused his state vehicle based on the conversation with Rhea.

In essence, the Department argues that McElyea’s belief that a law was violated is not reasonable

in light of his law enforcement training and experience. See Harris County Precinct Four Constable

Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996) (per curiam) (holding that courts should

examine the reasonableness of a peace officer’s belief that a law has been violated more closely than

the beliefs of others because a peace officer has more experience than those in other professions in

deciding whether an act is a violation of law).

               McElyea, however, had additional information at his disposal—McElyea testified that

part of his administrative duties included reviewing irregularities in investigators’ paperwork, such

as time records and mileage logs. McElyea testified that because he had seen Cobbs’s mileage logs,

he knew how much mileage Cobbs was putting on his state vehicle and he was aware that Cobbs

always drove his state vehicle everywhere. The Internal Affairs Division frequently investigated

governmental employees for misuse of state vehicles. McElyea had been personally involved in




                                                  16
many such investigations and was aware of a pending investigation concerning another employee’s

misuse of a state vehicle at the time of his reports about Cobbs.

                McElyea, as a peace officer, can be credited with a higher level of astuteness in

detecting impropriety than the average citizen. In the context of determining whether peace officers

had reasonable suspicion to support investigative detentions, the United States Supreme Court has

stated that courts must look at the totality of the circumstances in order to acknowledge that peace

officers may “draw on their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that ‘might well elude an untrained

person.’” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez,

449 U.S. 411, 418 (1981)). McElyea could be expected to make inferences and deductions from the

information available to him that may not have caught the attention of an untrained eye, but that

would allow McElyea, as a peace officer who investigated employees’ misuse of state vehicles as

part of his duties, to arrive at the conclusion that Cobbs was misusing his state vehicle. Considering

the totality of the circumstances, it was not unreasonable for McElyea to believe that Cobbs was

driving his state vehicle to his off-duty job.

                This is not a case like Texas Department of Criminal Justice v. Terrell, 18 S.W.3d

272 (Tex. App.—Tyler 2000, pet. denied), where the report of illegal conduct was based “solely on

rumor and innuendo.” Id. at 276. “The only bases Terrell pointed to for his allegations [concerning

misappropriation of state resources to pay expenses for a girlfriend] were ‘word of mouth’ and that

‘every warden knew about the relationship.’” Id. Here, McElyea had specific information from Fred

Rhea, a peace officer, that Cobbs had arranged for Rhea to work a private security job for a wealthy



                                                 17
Houston family for whom Cobbs regularly worked. The job did not involve providing “house-

sitting” services at their Houston residence, but rather involved travel to central Texas to provide

security to the family on their trip. Rhea informed McElyea that Cobbs would have performed the

job himself but for a scheduling conflict. While a report may not be based on rumor and innuendo,

it is permissible for a whistleblower’s knowledge about violations of law to be based on hearsay.

Castaneda, 831 S.W.2d at 504. Additionally, McElyea had reviewed Cobbs’s mileage logs and

knew that Cobbs took his state vehicle everywhere. Though McElyea did not have every piece of

the puzzle, he gathered enough information to form a good-faith belief that Cobbs violated state law.

               It is also relevant that McElyea pointed to a specific law that he believed Cobbs

violated. From his first report, McElyea was consistent in pointing to the state civil law governing

use of state vehicles as the specific law that was violated by Cobbs. Cf. Grabowski, 922 S.W.2d at

956 (“Grabowski presented no evidence of a law he believed Constable Moore violated other than

his department’s internal policies. Indeed, Grabowski openly admitted that he could think of no

traffic law violated by Constable Moore in the investigation of the accident.”); Donlevy v. City of

The Colony, 8 S.W.3d 754, 758 (Tex. App.—Fort Worth 1999, no pet.) (“Donlevy openly

admitted . . . that she did not know . . . what law she believed Chandler had violated . . . .”).

               While the Department urges that McElyea should have done a more thorough

investigation before alleging that Cobbs had misused his state vehicle, McElyea testified that Internal

Affairs Division policy dictated that employees could not open investigations on other Division

employees without McAuliffe’s approval. Thus, once McElyea had information that caused him to

reasonably believe that Cobbs was violating the law, McElyea brought it to McAuliffe’s attention.



                                                  18
McAuliffe, after conducting a cursory review that uncovered a widespread problem, chose not to

investigate further or take any disciplinary action.

               The Department is attempting to impose a duty to investigate and to penalize

McElyea for failing to investigate further. The Department’s position would put McElyea between

Scylla and Charybdis—if he fails to investigate, he is not protected from retaliation; if he does

investigate, violating the direct orders of his superiors, he can be fired for insubordination.

Particularly in a law-enforcement context, we do not want to encourage insubordination. Command

structure must generally be followed to prevent grim or even disastrous consequences. We reject,

to the extent that it is urged by the Department, an additional requirement that peace officers must

launch unauthorized investigations before being able to trigger the protections of

the whistleblower statute.

               To the extent that the Department’s position is that McElyea must have had hard

evidence to conclusively prove each and every element of a violation of the statute prior to qualifying

for whistleblower status, we know of no case that imposes such an onerous standard. To the

contrary, in Howard, this Court extended whistleblower protection to an employee who sought

“opinions” concerning the “legality/validity” of his employer’s practices. 182 S.W.3d at 400. The

Howard Court held that a good-faith report under the whistleblower statute includes “any disclosure

of information” about a public employee’s employer or coworker “tending to directly or

circumstantially prove the substances of a violation of criminal or civil law.” Id. at 399 (emphasis

added). The whistleblower statute does not “require the use of specific phrasing in a whistleblower




                                                  19
report” or “require that a whistleblowing employee state his complaint in the affirmative, as opposed

to reporting the matters in the form of a query.” Id. at 400.

               Overall, we hold that the information at McElyea’s disposal was sufficient for his

reports to provide him with whistleblower protection. The jury’s conclusion that McElyea had

sufficient information about Cobbs’s use of his state vehicle to form a good-faith belief that Cobbs

had violated the law is not so contrary to the overwhelming weight of the evidence that it is clearly

wrong and unjust.


       The Law
             We now turn to the question whether an existing law prohibits the conduct reported

by McElyea. The government code provides,


       (a) Except as provided by Subsection (b), an officer or employee of a state agency
       may not use a state-owned or state-leased motor vehicle except on official state
       business.

       (b) The administrative head of a state agency may authorize an officer or employee
       to use a state-owned or state-leased motor vehicle to commute to and from work
       when the administrative head determines that the use may be necessary to ensure that
       vital agency functions are performed. . . .


Tex. Gov’t Code Ann. § 2113.013 (West Supp. 2006). Two Department policies concerning the use

of state vehicles were introduced at trial. One largely tracks the statutory language:


       Employees shall not use State-owned or State-leased vehicles for any purpose other
       than official State business and in accordance with policy. The Executive Director
       may authorize an officer or employee to use a State-owned or State-leased motor
       vehicle to commute to and from work when the Executive Director determines that
       the use may be necessary to ensure that vital Agency functions are performed.



                                                 20
The other provides, in relevant part, that “State vehicles may be used for personal purposes only

when . . . [t]he user is engaged in personal activity but is on call for emergencies that would require

immediate transport to the workplace in the State vehicle.”

               McElyea stated that he “knew that there was a law about misuse of State vehicles

because [he] had been in Internal Affairs for 17 years” and that he “personally approved

investigations where employees were terminated and disciplined for misuse of a State vehicle, and

[he] saw those employees from time to time get prosecuted for that.” McElyea and Guinn both

testified about another Division employee who was investigated for misuse of a state vehicle around

the time that McElyea made his allegations about Cobbs. Guinn testified that “[t]he employee was

disciplined and removed from his position and removed from a position where he had use of a state-

owned vehicle.”

               McElyea testified that any use of a state vehicle for anything other than official state

business or commuting to and from work with permission violates the government code. McElyea’s

belief is supported by the plain language of the statute. The testimony of John McAuliffe was

consistent with McElyea’s interpretation of the statute. McAuliffe testified that he never used his

state vehicle for personal reasons even though he was on 24-hour call. Although he relied on a

Department policy rather than the government code as the basis for this limitation, the policy on

which he relied is the first of the two quoted above, which largely tracks the statutory language. The

fact that McAuliffe interpreted the policy this way lends support to McElyea’s interpretation of the

government code provision that uses substantially similar language.




                                                  21
               Cobbs testified at trial that he routinely used his state vehicle to travel to and from

his off-duty job and that the off-duty job was not directly on the route between his office at the

Department and his home. Mileage logs and time sheets introduced by McElyea at trial showed that

Cobbs drove his state vehicle to work at his off-duty job even on days when he did not report for

work at the Department because he took a holiday or sick time.

               The Department urges that McElyea could not have reported misuse of a state vehicle

in good faith because Cobbs and Rhea were on 24-hour call due to their membership in the Fugitive

Task Force of the Office of the Inspector General and, therefore, were allowed to use state vehicles

for personal reasons.10 This statement is wholly inconsistent with the plain language of the

government code. It also ignores the testimony of McAuliffe, who was the Inspector General at the

time of McElyea’s allegations, that “use of a state vehicle for personal reasons is certainly, first and

foremost, a violation of the administrative rules with TDCJ,” which required that “state vehicles are

to be used for official use only.” Even Moriarty testified in his deposition that any use of a state

vehicle for anything other than official state business or, for those with approval, driving between

the Department and an employee’s home violates state law, although he testified differently at trial.

               Regardless of what Department policy authorized, we hold that McElyea presented

legally and factually sufficient evidence to support a finding that he reported a violation of the

government code in good faith. His belief that a law had been violated is objectively reasonable

because he had experience applying the statute at issue, his interpretation is consistent with the plain


       10
         Under the Department’s interpretation of its policies, Cobbs could have driven his family
to Disneyland in his state-owned vehicle using state-purchased gas without suffering any adverse
consequences.

                                                  22
language of the statute, and McAuliffe’s interpretation of a substantially similar Department policy

supported McElyea’s interpretation.11


Causation

               The Department urges that legally and factually insufficient evidence was presented

at trial to support a finding that McElyea’s report of a violation of law was causally connected to

adverse personnel action taken against him. The supreme court has held that to show causation in

a whistleblower claim, a public employee must demonstrate a but-for connection between his report

of a violation of law and the adverse personnel action taken against him; in other words, he must

show that he “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).

               Circumstantial evidence can be sufficient to establish a casual link between the

adverse employment action and the reporting of illegal conduct. Id. at 69. Such evidence includes

(1) knowledge of the report of illegal conduct, (2) expression of a negative attitude toward the

employee’s report of the conduct, (3) failure to adhere to established company policies regarding

employment decisions, (4) discriminatory treatment in comparison to similarly situated employees,

and (5) evidence that the stated reason for the adverse employment action was false. Id. A plaintiff

need not present evidence involving all five categories to prove causation. See Continental Coffee


       11
           Because we hold that McElyea presented legally and factually sufficient evidence to
support a finding that he reported a violation of the government code in good faith, we need not
address the Department’s contention that McElyea presented insufficient evidence to establish that
he reported a violation of the Private Security Act in good faith.

                                                23
Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996). “But evidence that an adverse

employment action was preceded by a superior’s negative attitude toward an employee’s report of

illegal conduct is not enough, standing alone, to show a causal connection between the two events.”

Zimlich, 29 S.W.3d at 69. McElyea presented evidence relevant to all five categories.


Knowledge of the Report of Illegal Conduct

               Although Moriarty testified that no allegation concerning misuse of state vehicles was

ever brought to his attention, the jury was free to disbelieve that testimony and credit other evidence

that suggested the opposite. McElyea testified that he reported Cobbs’s misuse of a state vehicle in

his initial oral report to McAuliffe; Internal Affairs Division director Guinn corroborated that

testimony. Moriarty testified that McAuliffe discussed McElyea’s allegations with him; Moriarty

admitted that he was aware that McElyea had made allegations that Cobbs’s conduct in connection

with an off-duty job violated laws and Department policies. McAuliffe testified that Moriarty “was

specifically the person assigned within the Office of Inspector General to review Internal Affairs

employees’ conduct” and that Moriarty “was the person that [he] dealt with on this issue face to

face.” McAuliffe made no secret of the fact that he intended to recommend Moriarty as the next

Inspector General when he retired—witnesses testified that it was common knowledge within the

Division that Moriarty would be the next Inspector General. Moriarty testified that he was tasked

with getting information from Cobbs about the allegations. Cobbs testified that Moriarty informed

him that the allegations had been made by McElyea. Guinn testified that the April 2001 interoffice

communication concerning use of state vehicles that was distributed to all employees of the Office




                                                  24
of the Inspector General was a “direct follow-up” to McElyea’s allegations about Cobbs’s misuse

of his state vehicle.


Expression of a Negative Attitude Toward the Report

                Moriarty testified that McElyea’s report was a “non-issue,” but the jury was free to

disbelieve that testimony and believe other evidence that indicated that Moriarty expressed a

negative attitude toward the report. Claude Williams, McElyea’s direct supervisor, testified that

Moriarty went to his office “very angry” and “red in the face” and said, “You need to do something

about McElyea.” Moriarty told Williams that McElyea “needs to keep his nose out of things not his

business and needs not to be writing IOCs on people that work for me” and instructed Williams to

“[t]ell him he doesn’t know who he’s fucking with.” McElyea testified that Moriarty told him on

a Friday to “to pack [his] shit and get it out of the office by Monday.” Moriarty also testified that

McElyea was a “disloyal” employee.12

                McElyea testified that McAuliffe was “flabbergasted” and “agitated” when McElyea

made his allegations. Guinn testified that McAuliffe was “very agitated and upset” at McElyea’s

allegations. Williams testified that McAuliffe told him, referring to McElyea’s allegations, that

McElyea “needs to back off of that” because “Moriarty was going to be the next Inspector General.”

This testimony indicates that McAuliffe made it clear that McElyea had rocked the boat and that, as

far as McAuliffe was concerned, trouble loomed ahead for him.


        12
          Moriarty testified that McElyea was “disloyal” because he had “bad-mouthed” Moriarty.
However, the jury was free to disbelieve that explanation and believe that Moriarty’s characterization
of McElyea as “disloyal” was a result of McElyea’s reports. The jury was in the best position to
judge the credibility of the witnesses.

                                                 25
Failure to Adhere to Established Company Policies Regarding Employment Decisions

               Moriarty testified that he did not apply a veterans’ preference in favor of McElyea

when hiring the two multi-regional administrators. Witnesses testified that veterans were to receive

preference over other applicants if they were equally qualified. Moriarty testified that although

McElyea was equally qualified with the other two applicants on paper, it became clear after the

interviews that McElyea was less qualified. McElyea testified that interviews were not to be taken

into account in making the determination whether a veteran was equally qualified with other

applicants. The Department’s written policy, which was introduced at trial, is silent on whether

interviews were to be taken into account in the determination. The jury was free to accept McElyea’s

interpretation of the veteran’s preference policy.

               Moriarty also testified that he did not retain his notes taken during the interviews for

the multi-regional administrator positions; other testimony indicated that Moriarty destroyed his

interview notes from the director of investigations interviews. McElyea introduced into evidence

a Department policy requiring interview notes to be taken and retained. The Department’s director

of human resources, Carol Blair Johnston, testified that the selection policy does not apply where

there has been a reduction in force and that “[w]e have a provision in the policy where we can make

exceptions to the selection process.” Johnston testified that human resources “can supplement and

enhance [selection policies] where we’re going through a reduction in force.” The Department,

however, produced no documentation to support Johnston’s assertion. The jury was free to

disbelieve Johnston’s testimony and believe that the written policy introduced by McElyea correctly

stated Department policy.



                                                 26
Discriminatory Treatment in Comparison to Similarly Situated Employees

               McElyea testified that after he was told that his position was being eliminated, he was

not allowed to supervise employees, go to meetings, or review files. McElyea testified that the two

other multi-regional administrators who were eventually chosen for the remaining positions were

reviewing files and going to meetings during the same time period. Although those two employees

were awarded the multi-regional administrator positions, the disparate treatment described by

McElyea occurred before that decision was made.


Evidence that the Stated Reason for the Adverse Employment Action Was False

               Moriarty testified that he would have done whatever it took to ensure that McElyea

was not awarded a job within the Internal Affairs Division. But Moriarty testified that McElyea’s

reports were a “non-issue”; Moriarty did not want to hire McElyea because he did not trust McElyea,

because he thought that McElyea was disloyal, and because McElyea had been “bad-mouthing” him

around the office. At his deposition, Moriarty testified that he could not identify any specific

instance of “bad-mouthing”; at trial, Moriarty testified that he spoke with McElyea’s secretary after

his deposition and that McElyea’s secretary informed him that McElyea “was bad-mouthing

[Moriarty] and that he was upset about the reduction in force and was going to get [Moriarty].”

               The jury, however, was free to disbelieve this testimony and believe other evidence

suggesting that Moriarty failed to hire McElyea because of his reports about Cobbs. As mentioned

above, Williams testified that Moriarty said that McElyea “needs to keep his nose out of things not

his business and needs not to be writing IOCs on people that work for me” and “doesn’t know who

he’s fucking with.” Also, McElyea testified that he socialized with Moriarty and talked to him on


                                                 27
the phone frequently before McElyea made the allegations about Cobbs. McElyea said, “I did not

speak to him and he did not speak to me between February 28th of 2001 and the day

of the RIF meeting.”

               Because McElyea presented evidence that his superiors had knowledge of his reports

of illegal conduct, expressed a negative attitude toward his reports, failed to adhere to established

Department policies regarding employment decisions, discriminated against him in comparison to

similarly situated employees, and asserted a false reason for the adverse employment action, the

jury’s conclusion that McElyea’s reports of violations of law were causally connected to the adverse

employment action taken against McElyea is not so contrary to the overwhelming weight of the

evidence that it is clearly wrong and unjust. We overrule the Department’s issue.


                                         CONCLUSION

               Having overruled the Department’s issue on appeal, we affirm the trial court’s

judgment.



                                                      _____________________________________

                                                      Diane Henson, Justice

Before Chief Justice Law, Justices Puryear and Henson;
  Dissenting Opinion by Justice Puryear

Affirmed

Filed: July 26, 2007




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