                                                                                      ACCEPTED
                                                                                 03-14-00509-CV
                                                                                        3878566
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                            1/23/2015 1:03:50 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                            No. 03-14-00509-CV

                 IN THE COURT OF APPEALS          FILED IN
                                           3rd COURT OF APPEALS
              FOR THE THIRD JUDICIAL DISTRICTAUSTIN, TEXAS
                       AUSTIN, TEXAS       1/23/2015 1:03:50 PM
                     ______________________________         JEFFREY D. KYLE
                                                                 Clerk

               THE UNIVERSITY OF TEXAS AT AUSTIN
                              Appellant
                                  v.
                         DIJAIRA B. SMITH
                               Appellee
                   ______________________________

On Interlocutory Appeal from Cause No. D-1-GN-13-004318 in the 2OOth District
Court of Travis County, Texas, Honorable Judge Amy Clark Meachum, Presiding
                   _________________________________

                APPELLEE’S POST-SUBMISSION BRIEF
                   ______________________________



JOHN JUDGE
State Bar No. 11044500
JUDGE, KOSTURA & PUTMAN, P.C.
The Commissioners House at
Heritage Square
2901 Bee Cave Road, Box L
Austin, Texas 78746
Telephone: 512/328-9099
Facsimile: 512/328-4132
Email: jjudge@jkplaw.com


                    Counsel for Appellee Dijaira B. Smith

                    ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

       Appellee Dijaira B. Smith certifies that the following is a list of all parties

and their counsel to the trial court’s judgment or order appealed from as required

by Texas Rule of Appellate Procedure 38.1(a):


Name of Party                               Name of Counsel
  1. Plaintiff/Appellee                     John Judge
  Dijaira B. Smith                          State Bar No. 11044500
  (“Di Smith”)                              JUDGE, KOSTURA & PUTMAN, P.C.
                                            The Commissioners House at Heritage
                                            Square
                                            2901 Bee Cave Road, Box L
                                            Austin, Texas 78746
                                            Telephone: 512/328-9099
                                            Facsimile: 512/328-4132
                                            Email: jjudge@jkplaw.com

    2. Defendant/Appellant                  Erika Laremont
    The University of Texas at Austin       State Bar No. 24013003
    (“UT-Austin”)                           Assistant Attorney General
                                            Office of the Attorney General
                                            General Litigation Division
                                            P.O. Box 12548
                                            Austin, Texas 78711
                                            Telephone: 512/463-2120
                                            Facsimile: 512/320-0667
                                            Email:
                                            erika.laremont@texasattorneygeneral.gov




                                            ii
 
    _______________
                 _______________
    John Ju
          udge
    State Bar
          B No. 11044500

                                                 

    The Commissionners Housee at Heritagge Square
    2901 Bee
          B Cave R   Road, Boxx L
    Austinn, Texas 788746
    Telephhone: 5122/328-90999
    Facsimmile: 5122/328-41322
    jjudgee@jkplaw.ccom

    Counssel for Apppellee Dijaaira B. Smiith




             iii
 
                    APPELLEE’S POST-SUBMISSION BRIEF

To the Honorable Court: Having obtained leave, Appellee files her post-

submission brief.


    A. Introduction


      Appellee’s citation to this Court’s opinion in Resendez v. TCEQ, 391

S.W.3d 312, 322 (Tex. App. – Austin 2012), and the Supreme Court’s more recent

reversal of that ruling, TCEQ v Resendez, ___ S.W.3d ___ (Tex. No. 13-0094,

Nov. 21, 2014), does not mean that the trial court’s denial of Defendant’s plea to

the jurisdiction must be reversed in this case. To the contrary, the Supreme

Court’s omission of certain facts from its per curiam opinion in TCEQ; facts that

Appellee argued were favorably parallel to material facts her facts in her case;

supports a conclusion that the Supreme Court’s opinion in TCEQ is materially

distinguished. More importantly, this case contains significant jurisdictional facts

that were not at all present in TCEQ; namely that the University of Texas, Office

of Internal Audit (OIA) is specifically mandated to investigate violations of

criminal law. Finally, a companion case handed down the same day as TCEQ

demonstrates that the Supreme Court is not a blind denier of all waivers of

sovereign or governmental immunity, as some government lawyers are wont to

urge. Dalmuth v. Trinity Valley Community College, ___ S.W.3d ___ (Tex. 13-

0815, Nov. 21, 2014).
                                          1
 
       Accordingly, the Supreme Court’s surprise reversal of this Court’s ruling in

Resendez does not mandate reversal of the trial court’s denial of Defendant’s plea

to the jurisdiction in this case.


    B. Investigative Authority

       The statute provides a disjunctive definition of appropriate law enforcement

authority (ALEA) with four distinctive elements; that the reporter believed in good

faith the report recipient was a part of an entity authorized to:

       1. Regulate under the law reported to have been violated; or

       2. Enforce the law reported to have been violated; or

       3. Investigate violations of criminal law; or

       4. Prosecute violations of criminal law.


GOVT. CODE, §554.002 (b)


       In this case the Office of Internal Audit is clearly authorized to investigate

violations of criminal law involving third parties, such as contractors and their

employees. This authority is spelled out in the Handbook of Operating Procedures.

It extends to all individuals having a business relationship with the university

outside of traditional employment; paid or unpaid; including, but not limited to,




                                           2
 
affiliations associated with research, visiting scholars, employees of contractors,

and volunteers. 1


              Because the OIA is authorized to investigate violations of criminal law, it is,

objectively and indisputably, ALEA. The power to investigate violations of

criminal law, standing alone, is sufficient to make an entity ALEA. OAG v.

Weatherspoon, ___ S.W.3d ___, 2014 WL 2708759 (Tex. App. – Dallas No. 05–

13–00632–CV June 16, 2014). Plaintiff’s subjective belief, based primarily on the

auditors’ assurance that they were ALEA, was in fact and in law, objectively

reasonable.


       C. Omitted Facts


              In Resendez, this court put some weight on a supervisor’s taunt to the

whistleblowing reporter that if she believed that violations of law were occurring,

she should “report it to management.” Resendez, 391 S.W.3d at 327. The TCEQ

court did not find the taunting to be of significance. It is not mentioned in the per

curiam opinion, and is therefore immaterial to a proper analysis of the ALEA

definition in that case.


              Now, the distinction between a supervisory taunt and an auditor’s

reassurance becomes critically significant. In this case the auditors assured Di

                                                            
1
    CR 323-26, Handbook of Operating Procedures, 3-1021, Suspected Dishonest or Fraudulent Activities

                                                               3
 
Smith that she was reporting to the proper authorities and that she was protected

under the Whistleblower Protection Act.2 She was encouraged to, and did in fact

report to people outside her immediate employer’s circle of influence; people who

had authority investigate violations of criminal law; to right wrongs; to do justice.


              In contrast, the supervisor’s taunt in Resendez had the opposite effect. It

served to keep the institutional wrongdoing in house and under the rug. Confining

the reports of TCEQ crimes to TCEQ managers kept the damning information

away from authorities that could deal with the violations in the terms of the law.

Reporting TCEQ crime to TCEQ management would not protect the fisc in the

same way that reporting UIL crimes to internal auditors authorized to investigate

violations of criminal law would.


              For the same reason that the supervisor’s taunt of Resendez is immaterial to

proper ALEA analysis in TCEQ, the auditors’ legally correct assurance that Smith

could safely spill the beans on her bosses is highly significant. It is a material fact

that mandates a finding and conclusion that sovereign immunity has been waived

in this case.


       D. Okoli and Dalmuth




                                                            
2
    CR, 153, Id. p. 44, l. 6-17; CR, 179-180, Id. p. 70, l. 19-p. 71, l. 17

                                                               4
 
      Read together with TDHS v. Okoli _____, ___ S.W.3d ___ (Tex. No. 10-

0567, 2014) and Dalmuth v. Trinity Valley Community College, ___ S.W.3d ___

(Tex. 13-0815, Nov. 21, 2014), TCEQ demonstrates that Di Smith’s reports to

UT’s internal auditors were made to ALEA, and are protected under the

Whistleblower Protection Act, GOVT. CODE. 554.001, et seq. Following the

Needham to Gentilello line of cases, the Okoli and TCEQ opinions reaffirm that

reports to internal authorities with powers to ensure agency compliance do not

constitute reports to ALEA.


      These cases, however, do nothing to detract from a whistleblower’s legal

protection for reporting to an entity, whether internal or external, that has is

reasonably believed to possess investigative authority in criminal matters. The

objective reasonableness of Smith’s belief in the appropriateness of her report to

the Office of Internal Audit is proven through the free-standing criminal

investigative authority is bestowed by university policy, HOP 3-1021; established

under the Regents’ Rules, Rule 20201; which was adopted pursuant to statute,

Texas EDUC. CODE, §§ 65.11 et seq., and 51.352.


      In Dalmuth the court observed that LOCAL GOVT. CODE, §§ 271.151(2) and

271.152, waive a local governmental entity’s immunity from suit for breach of a

services contract. The Court tersely dealt with each of the defendant’s arguments

that contrived to escape the clear and direct legislative waiver of immunity.
                                           5
 
      First, “services” clearly includes what an employee provides his employer

by his efforts, and the statute waives immunity for claims under contracts for

services. Second, although the specific LOCAL GOVT. CODE sub-chapter involved

is entitled, “Acquisition, Sale, or Lease of Property, … [t]he heading of a title,

subtitle, chapter, subchapter, or section does not limit or expand the meaning of a

statute.” Thus, the ordinarily broad and general usage of the term ‘services’

includes any act performed for the benefit of another under some arrangement or

agreement whereby such act was to have been performed, citing Van Zandt v. Fort

Worth Press, 359 S.W.2d 893, 895 (Tex. 1962). Third, although the firefighters’

of earlier precedent were civil servants, treated differently from other employees in

some contexts, the law’s occasionally special treatment of civil service employees

says nothing about whether they should be treated differently under the Act.

Nothing in the Act itself indicates that its waiver of immunity is limited to suits by

civil servants.

      Dalmuth proves that the Supreme Court can find a legislative waiver of

immunity when the legislature provides one. It simply will not lightly imply one

where it is not directly stated, or necessarily implied by clear legislative writ, and

supported in the facts of the case at issue. The lower courts’ dismissal of the case

pursuant to the employer’s plea to the jurisdiction was reversed, and without

hearing oral argument, remanded to the trial court.


                                           6
 
      Likewise,
      L         in
                 n this case, the legislature has pplainly statted a waiveer of soverreign

immuniity for publlic employ
                           yees who caan state a cclaim undeer Chapter 554 of thee

GOVERN
     NMENT COD
             DE.

      “A public employee
                   e           who
                               w allegess a violatioon of this cchapter maay sue the
      employing state or loccal governm   mental enttity for the relief provvided by thhis
      chapter. So  overeign im mmunity iss waived annd abolisheed to the eextent of
      liiability for the relief allowed un
                                         nder this chhapter for a violationn of this
      chapter.” (eemphasis added)
GOVT. CODE, §554
               4.0035
      The
      T trial co
               ourt has pro
                          operly foun
                                    nd the OAII to be ALE
                                                        EA. It hass the free

standing
       g authority
                 y, and a maandate to in
                                       nvestigate violations of criminaal law

involvin
       ng financiaal impropriiety.

    E. Conclusion
       C        n

      The
      T trial co
               ourt’s deniaal of Defen
                                     ndant’s pleea to the jurrisdiction sshould be

upheld.


                                     Respectfully subbmitted,




                                  _______________
                                               _______________
                                  John Ju
                                        udge
                                  State Bar
                                        B No. 11044500

                                                                                     


                                              7
 
                                   The Commissionners Housee at Heritagge Square
                                   2901 Bee
                                         B Cave R   Road, Boxx L
                                   Austinn, Texas 788746
                                   Telephhone: 5122/328-90999
                                   Facsimmile: 5122/328-41322
                                   jjudgee@jkplaw.ccom

                                   Counssel for Apppellee Dijaaira B. Smiith


                            ERTIFICA
                           CE      ATE OF S
                                          SERVICE

    I herreby certify
                    y that on th
                               he 18th day y of Decemmber, 20144 a true andd correct coopy
    of th
        he above an nd foregoinng Appelleee’s Post-SSubmission Brief was served onn all
    counnsel of recoord via elecctronic filing notice aas follows::


    Erika Laremon  nt
    Officce of the Attorney
                   A        General
    P.O. Box 1254  48
    Austtin, Texas 78711-254 48




                                           
                                              John Juddge
                                              Counsel for Appelllee Dijairaa B. Smith




                                               8
 
                       CERT
                          TIFICATE
                                 E OF COM
                                        MPLIANC
                                              CE

      This
      T Appelllee’s Post-Submissio
                                 on Brief coomplies witth the lenggth limitatioons

of Texaas Rule of Appellate
                  A         Procedure
                            P         9.4(i)(2) bbecause it ccontains 1,372 wordss,

excludin
       ng the partts exempteed by Rule 9.4(i)(l).




                                                          _____________________________
                                                Johhn Judge
                                                Couunsel for A
                                                             Appellee Dijaira B. Sm
                                                                                  mith
 




                                           9 
 
