      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00136-CV



                                    William Duvall, Appellant

                                                 v.

                        Texas Department of Human Services, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
           NO. 98-08609, HONORABLE PAUL DAVIS, JUDGE PRESIDING



               William Duvall sued the Texas Department of Human Services (“Department”)

pursuant to the Whistleblower Act (“Act”) and appeals a summary judgment the trial court granted

in favor of the Department. See Tex. Gov’t Code Ann. §§ 554.001-.010 (West 1994 & Supp. 2002).

We will affirm the judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Duvall joined the Department in 1988 as a systems analyst in the Management

Information Systems division (“MIS”). In 1994, Duvall received the first in a series of subpar

performance evaluations that ended with his termination in 1998.1 During this period, he had varying

job assignments, working under several different supervisors within the Department. At the time his

whistleblower claim arose, Duvall was working as a cooperative performance standards compliance



       1
        The evaluations primarily cite a lack of cooperation, failure to follow instructions, and poor
communication skills. Duvall does not dispute the accuracy of the evaluations.
analyst. In this position, Duvall’s primary task was to compile data for the Customer Service

Response Time Report, also referred to as the 95th Percentile Report.2 The parties dispute the

significance of the report. The Department claims the report was simply an internal measurement tool

developed by MIS to identify trends and improve the response time of requests for information that

go through the computer network. According to the Department, the reports provide MIS with an

estimate of how long it takes for certain data retrieval transactions to occur, an example being a

request for information concerning welfare benefits. Duvall claims that the report was not only for

internal use, but was also sent to outside agencies.

                In the spring of 1997, Duvall became concerned about what he believed were

inaccuracies in the statistical methods used by one of the Department’s divisions to compile the

response time report. Duvall alleges that the division was “throwing out” response times that fell

outside an expected, acceptable range. The Department contends that Duvall’s real complaint is

essentially that the response time figures were being reported to one decimal place instead of two,

an insignificant difference given the internal nature of the report and its use as simply a general gauge

of network performance. Duvall first noted his concerns with the response times to his supervisor

David Larsen in the spring of 1997. In September 1997, Duvall was transferred to a new supervisor,

Joyce English. Shortly after the transfer, Duvall received a written reprimand from English for

violating departmental work rules.3       On October 8, Duvall met with English to discuss his

        2
         According to the department of human services, “95th percentile” refers to its goal of
completing ninety-five percent of computer network data transactions within a certain time frame.
        3
          The reprimand states that Duvall failed to follow English’s instructions to stop sending
weekly status reports to the director of telecommunications support services. It also reprimands him
for an apparent breach of security in revealing to English the password for an application used to
compile the service level agreements.

                                                   2
performance. At the meeting, Duvall conveyed his belief that the response times were not being

accurately calculated. After English instructed him to stop pursuing the issue, Duvall accused her of

trying to cover up “illegal activity” by the Department. In November, Duvall was placed on probation

and, in January 1998, he was dismissed. He subsequently initiated grievance procedures, and in June

1998, an administrative law judge ruled in favor of the Department.

               Duvall then filed his whistleblower action alleging that the Department had retaliated

against him for reporting inaccuracies in the response times. The Department claims it fired Duvall

based on his poor job performance. Duvall argues that the fact that the Department did not take

corrective action against him earlier shows that the Department’s demotion and subsequent firing of

him were in retaliation for reporting a violation of law to English. In his first amended petition,

Duvall identified section 37.10 of the Texas Penal Code, which creates a criminal offense for

tampering with a governmental record, as the law he believes the Department violated.4

               In response, the Department filed a plea to the jurisdiction that Duvall failed to timely

invoke the Department’s grievance procedures as required by the Act. Tex. Gov’t Code Ann.




       4
           Section 37.10 of the Texas Penal Code provides in relevant part:

           (a) A person commits an offense if he:

               (1) knowingly makes a false entry in, or false alteration of, a governmental
                   record;
                                                  ***
               (3) intentionally destroys, conceals, removes, or otherwise impairs the verity,
                   legibility, or availability of a governmental record;

                                          ***
Tex. Pen. Code Ann. § 37.10 (West 1994 & Supp. 2002).


                                                  3
§ 554.006. The district court denied the plea after a hearing in which Duvall judicially admitted that

the only report of an alleged violation of law he would rely on was his October 8, 1997 report. The

Department then moved for summary judgment on both traditional and no-evidence grounds that

Duvall failed to prove the elements of a whistleblower claim. The court granted the Department’s

motion without specifying the grounds in its order.

               On appeal, Duvall asserts that the trial court erred in granting summary judgment to

the Department because (1) he made a good faith report; (2) he reported a violation of law; (3) he

reported to an appropriate law enforcement authority; (4) he timely initiated grievance procedures

in accordance with the Act; and (5) he prevailed on causation because the Department failed to rebut

the statutory presumption that its actions were retaliatory.


                                    STANDARD OF REVIEW

               The Department moved for summary judgment on both traditional and no-evidence

grounds. The standards for reviewing a traditional summary judgment motion are well established:

(1) the movant must show there is no genuine issue of material fact and that it is entitled to judgment

as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary

judgement, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable

inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v.

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant who moves for summary

judgment must disprove at least one essential element of the plaintiff’s causes of action. Domizio v.

Progressive County Mut. Ins. Co., 54 S.W.3d 867 (Tex. App.—Austin 2001, pet. denied).




                                                  4
               A party may also move for a “no-evidence” summary judgment. Tex. R. Civ. P.

166a(i). Such a motion asserts that there is no evidence of one or more essential elements of claims

upon which the opposing party would have the burden of proof at trial. Id.; McCombs v. Children’s

Med. Ctr., 1 S.W.3d 256, 258 (Tex. App.—Texarkana 1999, pet. denied). Unlike a movant for

traditional summary judgment, a movant for a no-evidence summary judgment does not bear the

burden of establishing a right to judgment by proving each claim or defense. McCombs, 1 S.W.3d

at 258. A no-evidence summary judgment is properly granted if the nonmovant fails to produce more

than a scintilla of probative evidence raising a genuine issue of fact as to an essential element of a

claim on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i);

Flameout Design v. Pennzoil Caspian, 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist]. 1999,

no pet.); Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex. App.—Austin 1998, no pet.).

Evidence is more than a scintilla when it “rises to the level that would enable reasonable and fair-

minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no

more than create a mere surmise or suspicion’ of a fact.” Fiesta Mart, 979 S.W.2d at 71 (quoting

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). As with a traditional summary

judgment motion, we must construe the evidence in favor of the nonmovant and indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Id. at 70. In the present case,

we find the Department’s no-evidence summary judgment motion dispositive of Duvall’s

whistleblower claim.




                                                  5
                                            DISCUSSION

Texas Whistleblower Act

                The purpose of the Texas Whistleblower Act is twofold: (1) to enhance open

government by protecting public employees from retaliation by their employer when an employee

reports a violation of the law in good faith; and (2) to secure lawful conduct by those who “direct and

conduct the affairs of government.” See City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex

App.—Austin 1996, writ denied). The Act is remedial in nature and must be liberally construed.

Stinnett v. Williamson County Sheriff’s Dep’t, 858 S.W.2d 573 (Tex. App.—Austin 1993, writ

denied).

                To prevail on his whistleblower claim, Duvall must allege that: (1) he is a public

employee; (2) he acted in good faith in making a report; (3) the report involved a violation of law by

the agency or a public employee; (4) the report was made to an appropriate law enforcement

authority; and (5) he suffered retaliation for making the report. See Tex. Gov’t Code Ann. § 554.002

(West 1994 & Supp. 2002);5 Heim, 932 S.W.2d at 290.


       5
           Section 554.002 provides:

           (a) A state or local governmental entity may not suspend or terminate the
               employment of, or take other adverse personnel action against, a public
               employee who in good faith reports a violation of law by the employing
               governmental entity or another public employee to an appropriate law
               enforcement authority.

           (b) In this section, a report is made to an appropriate law enforcement authority
               if the authority is part of a state or local governmental entity or of the federal
               government that the employee in good faith believes is authorized to



                                                   6
Appropriate Law Enforcement Authority

               In his fourth issue, Duvall argues that his report of a violation of law was made to an

appropriate law enforcement authority, relying primarily on the October 8 report he made to his

supervisor, English. We agree with the Department that Duvall has produced no evidence he

reported to an appropriate law enforcement authority as currently defined by the Act.6

               Duvall relies on pre-1995 case law for a broad definition of “appropriate law

enforcement authority.” See Castaneda v. Texas Dep’t of Agriculture, 831 S.W.2d 501, 504

(Tex.App.—Corpus Christi 1992, writ denied) (defining “appropriate law enforcement authority” as

“any entity with the capacity through legal processes or otherwise to take remedial action”); Travis

County v. Colunga, 753 S.W.2d 716, 719-20 (Tex. App.—Austin 1988, writ denied) (defining

“appropriate law enforcement authority” to include “at a minimum any public authority having the

power and duty of inquiring into the lawfulness of the questioned activity and causing its cessation”);

see also City of Dallas v. Moreau, 697 S.W.2d 472, 474 (Tex. App.—Dallas 1985, no writ).




               (1) regulate under or enforce the law alleged to be violated in the report; or

               (2) investigate or prosecute a violation of the criminal law.

Tex. Gov’t Code Ann. § 554.002 (West Supp. 2002).
       6
           Both parties focus their arguments on the individual to whom the report was made
(English), not the entity (the Department). In Robertson County v. Wymola, we held that the proper
inquiry is whether the entity is an appropriate law enforcement authority. 17 S.W.3d 334, 340-41
(Tex. App.—Austin 2000, pet. denied). However, because we must indulge inferences in Duvall’s
favor on summary judgment, we will construe the evidence in terms of whether the Department was
an appropriate law enforcement authority. See infra. p. 12.

                                                  7
                When these cases were decided the Act did not define “appropriate law enforcement

authority.” However, in 1995 the Legislature amended section 554.002 of the Act by adding

subsection (b) to narrow what constitutes an appropriate law enforcement authority. See Act of May

25, 1995, 74th Leg., R.S., ch. 721, § 2, sec. 554.002, 1995 Tex. Gen. Laws 3812, 3812.7 The

current statute defines “appropriate law enforcement authority” as being part of a governmental entity

that an “employee in good faith believes is authorized to regulate under or enforce the law alleged

to be violated in the report or to investigate or prosecute a violation of the criminal law.”8 Tex. Gov’t

Code Ann. § 554.002(b) (emphasis added). Duvall’s claim falls under the amended version of the

Act.

                Section 554.002(b) clearly delineates an appropriate law enforcement authority as a

governmental entity that is authorized “to regulate under or enforce the law alleged to be violated or

to investigate or prosecute a violation of criminal law.” Id. However, subsection (b) requires only

that an employee have a good faith belief that the entity reported to is an appropriate law enforcement

authority, not that the report actually be made to such an entity. Id. Thus, correctly interpreting

subsection (b) hinges on the meaning of “good faith.” The Act does not define “good faith.” Tex.

Gov’t Code Ann. §§ 554.001-010. “Good faith” is a distinctly legal term that has been construed

        7
            Before the 1995 amendments, section 554.002 read:

            A state agency or local government may not suspend or terminate the employment
            of or discriminate against a public employee who in good faith reports a violation
            of law to an appropriate law enforcement authority.

Tex. Gov’t Code Ann. § 554.002 (West 1994).
        8
         The Act has not been amended since 1995. See Tex. Gov’t Code Ann. §§ 554.001-.010
(West Supp. 2002).

                                                   8
differently by the courts. See Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). The Texas

Supreme Court has defined “good faith” in the context of the Act. See Hart, 917 S.W.2d at 784.

In Hart, the court construed “good faith” as it applies in subsection (a) of section 554.002 to contain

both a subjective and objective component:


       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 employee’s
       training and experience. The first part of the definition . . . ensures that employees
       seeking a remedy under the Whistleblower Act must have believed that they were
       reporting an actual violation of the law. The second part of the definition ensures
       that, even if the reporting employee honestly believed that the reported act was a
       violation of law, an employer that takes prohibited action against the employee
       violates the Whistleblower Act only if a reasonably prudent employee in similar
       circumstances would have believed that the facts as reported were a violation of law.


Id. The court observed that this definition strikes the appropriate balance between public and private

concerns in the whistleblower context, noting that while the Act protects public employees who

report illegal activity, public employers must also be able to “preserve their right to discipline

employees who make either intentionally false or objectively unreasonable reports.” Id.

               Where the Legislature has not defined a term, it is within the province of the courts

to construe its meaning. Freels v. Walker, 26 S.W.2d 627, 629 (Tex. 1930). Absent language

indicating a contrary intent, a word or phrase used in different parts of a statute is presumed to have

the same meaning throughout. Dallas v. Watkins, 651 S.W.2d 923, 925 (Tex. App.—Dallas 1983,

no writ) (holding that “disability” as used in different sections of the police and fire pension fund

statute should have the same definition); L & M-Surco Mfg., Inc. v. Winn Tile Co., 580 S.W.2d 920,

926 (Tex. Civ. App.—Tyler 1979, writ dism’d) (holding that “consumer goods” in venue statute



                                                  9
should be defined according to the definition of “consumer goods” in the business and commerce

code). In construing a word or phrase, courts should consider the context of the separate sections

in which the word or phrase appears. See Paddock v. Siemoneit, 218 S.W.2d 428, 435-36 (Tex.

1949) (holding that meaning of “wilfully” as used in separate subsections of federal tax code differed

depending on whether statute imposed civil or criminal penalty).

               With these principles in mind, we conclude that subsections (a) and (b) of section

554.002 warrant the same definition of “good faith.” The presumption that a term used in different

parts of a statute has the same meaning is even stronger where the term is used repeatedly in the same

section. In section 554.002(b) the Legislature included the same “good faith” requirement for reports

to an appropriate law enforcement authority as it requires in section 554.002(a) concerning an

employee’s good faith report of a violation of law. See Tex. Gov’t Code Ann. § 554.002.

Furthermore, we believe that the policy rationale articulated by the Hart court for its definition of

“good faith” in construing subsection (a) applies with equal force to reports to an appropriate law

enforcement authority in subsection (b) and is consistent with legislative intent. Both subsection (a)

and (b) balance the right of employees to report illegal activity with that of employers to discipline

employees who make “insincere or objectively unreasonable reports.” Therefore, we hold that Hart’s

application of good faith to an employee’s belief that the law has been violated should also apply to

an employee’s belief that he has reported to an appropriate law enforcement authority. In other

words, for Duvall to prevail on this issue he must show that when he made his October 8 report to

English he honestly believed he was reporting the perceived violation to an authority within an entity




                                                 10
which could regulate under or enforce the law in issue or investigate or prosecute a criminal offense

and, moreover, that this belief was objectively reasonable.

                  We have found no state court opinion interpreting the 1995 amendment to section

554.002; however, we note that at least one federal court confronted with the amended version of

section 554.002 has reached the same definition of good faith regarding a report to an appropriate

law enforcement authority. See Carey v. Aldine Indep. Sch. Dist., 996 F. Supp. 641, 654-56 (S.D.

Tex. 1998). In Aldine, a special education teacher, Mary Ann Carey, sued the school district for its

nonrenewal of her employment contract, alleging violations of free speech, due process, breach of

contract, and the Texas Whistleblower Act. In her whistleblower action, Carey alleged that the

nonrenewal was in retaliation for her reporting of alleged violations of law by her principal and by the

district. Id. Carey reported the violations to the district special education office and to several school

officials. Id. at 655. The federal court granted the district’s motion for summary judgment on

Carey’s whistleblower claims. Id. at 656. Applying the Hart court’s definition of “good faith,” the

federal court found that Carey had presented no evidence that she had a good faith belief that any of

the individuals or entities she reported to had the ability to “regulate under or enforce the law alleged

to be violated in the report,” thus Carey had not reported to an appropriate law enforcement

authority.9 Id at 655.


        9
            The court stated:

            There is nothing within the statute or articulated by any Texas court to indicate that
            a different definition of “good faith” should apply to an employee’s belief that the
            person to whom she was reporting alleged violations of law be authorized to:
            regulate under or enforce the law alleged to be violated in the report; or (2)
            investigate or prosecute a violation of the criminal law. . . . This court finds that

                                                    11
                Turning now to Duvall’s claim and construing the evidence in his favor as required

in the summary judgment context, we initially point out that Duvall directed his proof only to English

and not to the Department. See Robertson County v. Wymola, 17 S.W.3d 334, 340-41 (Tex.

App.—Austin 2000, pet. denied) (holding that proper inquiry is whether entity, not individual,

reported to is an appropriate law enforcement authority). However, even construing Duvall’s

summary judgment evidence concerning English in terms of whether the Department is an appropriate

law enforcement authority, we find that the evidence fails to amount to the more than a scintilla

necessary to withstand a no-evidence summary judgment motion. Duvall relies on the deposition

testimony of English attached to the Department’s motion for summary judgment in which she states

that she was responsible for supervising Duvall on his assignment to reconfigure the data process for

the response time reports. Based on this testimony, Duvall argues that English had the authority to

take remedial action with regard to the alleged inaccuracies in the response time reports. However,

this contention relies on the term “law enforcement authority” as it was broadly defined before the

1995 amendments. See Casteneda, 831 S.W.2d at 504. The current statute does not speak in terms

of the authority to take remedial action, but instead the authority to regulate under or enforce the law

alleged to be violated or to investigate or prosecute a violation of the criminal law. Tex. Gov’t Code



         Carey has presented no summary judgment evidence indicating that: (1) she had a
         subjective belief that the special education office and the principal and assistant
         principal had the power to regulate or enforce the state law and school district
         policies Carey alleges were violated; or (2) that such a belief would be reasonable,
         in the absence of her presentation of any evidence explaining these actors’ roles in
         enforcing state or local law.

Carey v. Aldine Indep. Sch. Dist., 996 F. Supp. 641, 655 (S.D. Tex. 1998).


                                                  12
Ann. § 554.002(b). In addition, Duvall fails to address or point to evidence that he had a good faith

belief that English was an appropriate law enforcement authority. In the absence of other evidence,

the fact that Duvall believed that English had the authority to take remedial action does not satisfy

the objective or subjective component of good faith contained in section 554.002(b).

               In his response, Duvall also contends that he reported a violation of law to the

Department’s acting director of telecommunications support services, Russell Seale. Duvall relies

on a “speed memo” dated October 8 that he sent to a coworker briefly describing a meeting with

Seale about the response time reports. The memo does not state whether Duvall told Seale that he

believed the law was being violated. We note that the court’s order denying the Department’s plea

to the jurisdiction states that Duvall judicially admits that the only report of a violation of law he

would rely on at trial is his October 8 report. At the hearing on the plea, the only October 8 report

discussed was the report to Joyce English. Even if the speed memo is sufficient to raise more than

a scintilla of evidence that Duvall reported a violation of law to Seale, Duvall provides no evidence

that Seale is an appropriate law enforcement authority.

               As Duvall provided no evidence in his response to the Department’s motion for

summary judgment that he reported a violation of law to an appropriate law enforcement authority,

we overrule this issue.


Good Faith Report of Violation of Law

               Duvall also argues that the trial court erred by concluding that he did not make a good

faith report of a violation of law. As discussed, the Hart court established a two-prong test

containing a subjective and objective component for determining whether an employee’s report of

                                                 13
a violation of law was made in good faith. See Hart, 917 S.W.2d at 785. To establish good faith,

an employee must show that he believed that the reported conduct violated the law and that his belief

was objectively reasonable in light of his training and experience. Id. Applying both traditional and

no-evidence standards for summary judgment, the Department argues that Duvall failed to meet either

the subjective or objective prong of the test. We conclude that Duvall fails to produce evidence that

his report was objectively reasonable sufficient to withstand a no-evidence motion for summary

judgment.10

               The objective prong of Hart is met only if a “reasonably prudent employee in similar

circumstances would have believed the facts as reported were a violation of law.” Id. at 784-85; see

also Texas Dep’t of Criminal Justice v. Terrell, 18 S.W.3d 272, 276 (Tex. App.—Tyler 2000, pet.

denied). As evidence that his belief was objectively reasonable, Duvall cites his “participation in the

development of the programming inherent in the collection of the data, his educational background,

and his years of employment in the MIS department.” However, Duvall introduces no evidence in

his response that shows how his training and experience led him to believe that a violation of law

occurred. See Terrell, 18 S.W.3d at 276-277. In Terrell, a prison warden with the Texas

Department of Criminal Justice claimed that his superior had violated the law by, among other things,

falsifying the payroll. Id. at 274. The warden’s allegations were based solely on rumors circulating

within the department. The warden cited his twenty-one years of experience with the department as

evidence that his belief that the law had been violated was objectively reasonable. Id. at 277. The


       10
           We assume without deciding that Duvall’s statement to English that the department was
covering up “illegal activity” is sufficient to meet the subjective prong of Hart for purposes of
defeating summary judgment.

                                                  14
Tyler Court of Appeals concluded that (1) rumors were no evidence of violations of law, and that (2)

in the absence of other evidence, the warden’s training and experience were not sufficient by

themselves to establish that his belief was objectively reasonable. Id. While rumors did not form the

basis of Duvall’s belief, the Terrell case is similar to the one at bar in that Duvall, like the warden in

Terrell, has offered no evidence in his response other than his training and experience that his belief

was objectively reasonable. Duvall correctly asserts that a law enforcement official, like Terrell, is

held to a higher standard in determining whether his belief is objectively reasonable, see Harris

County Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996); however,

it does not follow that those in non-law enforcement professions are held to no standard.

                Finally, we observe that in Duvall’s deposition attached to his response, he states that

his previous supervisor, Larsen, shared his concerns about the calculation method and asked him “to

look into it.” Duvall did not claim that any law had been violated at that time, some months before

he made the report to English at issue in this case. Nor does he mention the exchange with Larsen

in his response. It was Duvall’s burden under a no-evidence summary judgment to raise an issue of

material fact. See Flameout, 994 S.W.2d at 834; Tex. R. Civ. P. 166(a)(i), comment (“To defeat a

motion made under paragraph (i), the respondent is not required to marshal its proof; its response

need only point out evidence that raises a fact issue on the challenged merits”) (emphasis added).

Regardless, the fact that Larsen may have shared Duvall’s concerns about the calculation method

proves nothing without evidence that Duvall or Larsen believed a law was being violated at that time.

However, even if Larsen’s statements could be construed as some evidence that Duvall’s belief was

objectively reasonable, we conclude it is so weak as to create no more than a “surmise or suspicion”



                                                   15
of a fact and is, therefore, no evidence. See Kindred, 650 S.W.2d at 63. We further conclude that

in the absence of other evidence, Duvall’s recitation of his experience is not sufficient to meet the

objective prong of Hart. We overrule Duvall’s second issue.

               Because we have determined that Duvall failed to produce more than a scintilla of

probative evidence on two elements of his whistleblower claim, it is unnecessary for us to consider

his remaining issues.


                                         CONCLUSION

               Duvall failed to produce sufficient evidence to withstand the Department’s no-

evidence motion for summary judgment; therefore, we affirm the trial court’s judgment.




                                              David Puryear, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: April 18, 2002

Publish




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