City of Edinburg, Texas v. Cesar Torres

• Court: Court of Appeals of Texas
• Decided: July 7, 2022
• Docket: 13-21-00320-CV
• Status: Published

Opinion

NUMBER 13-21-00320-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF EDINBURG, TEXAS, Appellant,

v.

CESAR TORRES, Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Benavides

In this interlocutory appeal from the denial of a plea to the jurisdiction, appellant

City of Edinburg (City) contends that appellee Cesar Torres filed his claim under the

Texas Whistleblower Act outside the ninety-day limitations period. See TEX. GOV’T CODE

ANN. § 554.005. We affirm. I. BACKGROUND

In January of 2019, Torres was hired as the Chief of Police for the City’s police

department. According to his petition, the following timeline of events precipitated his suit

against the City.

September 18, 2020—An internal affairs investigator informed Torres about a

complaint against an officer who was allegedly involved in a conspiracy to commit

insurance fraud. Torres later emailed City Manager Ron Garza and informed Garza of his

intent to contact the Texas Rangers or the Federal Bureau of Investigation (FBI) to assist

in the investigation. Garza responded to the email and directed Torres to “not take action”

until the two of them had an opportunity to meet and discuss the matter.

September 24, 2020—The internal affairs investigator notified Torres that Garza

and City Attorney Omar Ochoa had contacted him about the complaint and that he felt

“intimidated” by the City officials not to pursue the matter.

September 26, 2020—Torres told Garza that he wanted to meet with him to

discuss the complaint, and Garza told him to stop pursuing it.

October 2, 2020—Torres met with the FBI and reported the complaint against the

officer.

October 9, 2020—Torres broached the subject with Garza again, and Garza told

Torres that “he did not want the matter investigated.” That same day, Garza “targeted”

Torres by singling him out for discipline.

October 30, 2020—Garza “threatened” Torres by telling him that he was going to

“clean up administration.”

2 November 4, 2020—Torres reported to the FBI that Garza did not want him to

pursue a criminal investigation against the officer.

November 6, 2020—Torres told Garza that he reported the officer to the FBI.

Unclear—There were “several other incidents” where Garza and Councilman

David White “harassed and targeted” Torres “as a result of” his report to the FBI.

April 7, 2021—Garza told Torres that he would be terminated if he did not resign.

April 12, 2021—Torres declined the invitation to resign, and Garza placed him on

administrative leave.

May 6, 2021—Torres filed suit.

The trial court granted Torres’s request for a temporary restraining order and

enjoined the City from terminating Torres or taking any other adverse employment action

against him. The City removed the case to federal court on May 16, 2021, one day before

the scheduled hearing on Torres’s request for a temporary injunction. The case was

remanded to state court two weeks later; however, in the interim, the temporary

restraining order expired on May 20, 2021, and the City terminated Torres the next day.

Upon remand, the City filed a plea to the jurisdiction arguing that Torres’s petition

affirmatively negated jurisdiction because Torres alleged that he suffered adverse

employment actions as early as October 9, 2020, more than ninety days before he filed

suit on May 5, 2021. The trial court denied the plea, and this interlocutory appeal ensued.

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

3 II. APPLICABLE LAW & STANDARD OF REVIEW

Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject

matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.

Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A plaintiff must plead facts that

affirmatively demonstrate the trial court’s subject matter jurisdiction. Fleming v. Patterson,

310 S.W.3d 65, 68 (Tex. App.—Corpus Christi–Edinburg 2010, pet. struck) (citing Tex.

Air Control Bd., 852 S.W.2d at 446).

Sovereign immunity protects the State and its agencies from lawsuits for money

damages and deprives a trial court of subject matter jurisdiction over the plaintiff’s claims.

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).

Governmental immunity offers the same protections for political subdivisions of the State,

including municipalities. Id. To prevail on a claim of immunity, the governmental defendant

“may challenge the pleadings, the existence of jurisdictional facts, or both.” Alamo Heights

Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). “When a plea to the

jurisdiction challenges the pleadings, we determine if the plaintiff has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the case, construing the

pleadings liberally in favor of the plaintiff and considering the plaintiff’s intent.” Meyers v.

JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018) (citing Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). When “the pleadings do not

contain sufficient facts that affirmatively demonstrate the trial court’s jurisdiction but do

4 not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiff should be afforded the opportunity to amend.” Id. (citing

Miranda, 133 S.W.3d at 226–27).

“The Whistleblower Act prevents a local governmental entity from firing a public

employee for reporting another public employee’s violation of the law to a law-

enforcement authority.” City of Madisonville v. Sims, 620 S.W.3d 375, 378 (Tex. 2020)

(per curiam) (citing TEX. GOV’T CODE ANN. § 554.002(a)). Other prohibited conduct

includes taking “adverse personnel action” against the reporting employee. TEX. GOV’T

CODE ANN. § 554.002(a). “[A] personnel action is adverse within the meaning of the

Whistleblower Act if it would be likely to dissuade a reasonable, similarly situated worker

from making a report under the Act.” Montgomery County v. Park, 246 S.W.3d 610, 614

(Tex. 2007) The Whistleblower Act waives the governmental employer’s immunity for

violations of the Act. TEX. GOV’T CODE ANN. § 554.0035.

A plaintiff must allege the following elements to establish a violation of the

Whistleblower Act: “(1) he was a public employee; (2) he made a good faith report of a

violation of law by his employing governmental entity or another public employee; (3) he

made the report to an appropriate law-enforcement authority; and (4) he suffered

retaliation as a result of making the report.” City of Donna v. Ramirez, 548 S.W.3d 26, 37

(Tex. App.—Corpus Christi–Edinburg 2017, pet. denied) (emphasis added) (citing TEX.

GOV’T CODE ANN. § 554.002(a)).

The Whistleblower Act imposes a ninety-day deadline to file a claim from the date

the violation occurred or was discovered by the employee through reasonable diligence.

5 TEX. GOV’T CODE ANN. § 554.005. The deadline is a jurisdictional prerequisite to filing suit

and failure to comply may be raised in a plea to the jurisdiction. City of Madisonville, 620

S.W.3d at 379.

III. ANALYSIS

By a single issue, the City contends that the trial court erred in denying its plea to

the jurisdiction because Torres alleged a violation of the Whistleblower Act that occurred

more than ninety days before he filed suit on May 5, 2021. Specifically, the City points to

Torres’s allegations that Garza “targeted” him with disparate discipline on October 9,

2020, and “threatened” his job security on October 30, 2020. According to the City, these

were adverse personnel actions that triggered Torres’s ninety-day filing period long before

Torres was informed of his impending termination on April 7, 2021. We disagree.

A violation of the Whistleblower Act occurs when the government employer

retaliates against the employee “because” he made a report. Off. of Att’y Gen. v.

Rodriguez, 605 S.W.3d 183, 191 (Tex. 2020) (quoting Tex. Dep’t of Hum. Servs. v. Hinds,

904 S.W.2d 629, 633 (Tex. 1995)). Stated differently, “[t]o establish a Whistleblower Act

claim, the plaintiff must show that his report to a law enforcement authority caused him to

suffer the complained-of adverse personnel action.” Canutillo Indep. Sch. Dist. v. Farran,

409 S.W.3d 653, 656 (Tex. 2013) (citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67

(Tex. 2000)). Without a causal link between the report and the adverse employment

action, the employee has no claim. Rodriguez, 605 S.W.3d at 192 (“The Act imposes

liability if an employee’s report causes an adverse employment action . . . .”). Of course,

without a claim, the ninety-day filing period never begins to run. See TEX. GOV’T CODE

6 ANN. § 554.005.

Here, although Torres met with the FBI on October 2, 2020, he did not inform

Garza about the meeting until November 6, 2020—after Garza allegedly “targeted” and

“threatened” him. There is no other allegation in the petition suggesting that Garza knew

about the meeting before Torres informed him on November 6, 2020. See Zimlich, 29

S.W.3d at 69 (circumstantial evidence of causation includes the employer’s “knowledge

of the report”). Thus, any adverse personnel action directed at Torres before November

6, 2020, was not retaliatory and did not trigger the ninety-day filing period. 1 See

Rodriguez, 605 S.W.3d at 192; City of Donna, 548 S.W.3d at 37.

The next specific, timestamped allegation in Torres’s petition is that Garza

informed him in a meeting on April 7, 2021, that he would be terminated if he did not

resign. According to Torres, this is when his claim accrued, and he filed suit less than a

month later, on May 5, 2021, well within the ninety-day deadline. See Herrera v. Dall.

Indep. Sch. Dist., 609 S.W.3d 579, 589 (Tex. App.—Dallas 2020, pet. denied) (concluding

violation occurred when employee received notice of employer’s intent not to renew

employee’s contract, not when decision became final); Univ. of Tex.-Pan Am. v. De Los

Santos, 997 S.W.2d 817, 820 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.)

(holding claim accrued when employer notified employee of intent to terminate); cf.

Specialty Retailers, Inc. v. DeMoranville, 933 S.W.3d 490, 493 (Tex. 1996) (per curiam)

(stating “limitations period begins when the employee is informed of the allegedly

1 An employer’s adverse employment action designed to preemptively deter an employee from making a report is not actionable under the Whistleblower Act. See TEX. GOV’T CODE ANN. § 554.002(a); Off. of Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020). 7 discriminatory employment decision, not when that decision comes to fruition”).

The City points out that Torres also alleged in his petition that, at some unspecified

time after November 6, 2020, but before April 7, 2021, there were “several other incidents”

where Garza and Councilman David White “harassed and targeted” Torres “as a result

of” his report to the FBI. Although these other incidents were allegedly a “result of” the

report, it is unclear from the pleadings whether they occurred within ninety days of Torres

filing suit. It is also unclear, without more detailed allegations, whether these incidents

would constitute distinct adverse employment actions, thereby potentially triggering the

filing deadline.2

Therefore, Torres’s petition neither affirmatively establishes nor affirmatively

negates the trial court’s jurisdiction. As such, “the issue is one of pleading sufficiency and

[Torres] should be afforded the opportunity to amend.” See JDC/Firethorne, 548 S.W.3d

at 486. Accordingly, the trial court did not err in denying the City’s plea to the jurisdiction.

See County of Cameron v. Brown, 80 S.W.3d 549, 559 (Tex. 2002) (“Because this

pleading defect is one for which the plaintiffs should be afforded an opportunity to amend,

we affirm the court of appeals’ judgment reversing the trial court’s dismissal for lack of

jurisdiction and remanding the case to the trial court.”). The City’s issue is overruled.

2 The parties have not briefed, and today we do not decide, the interplay between successive,

distinct violations under the Whistleblower Act and the limitations period. For example, if an employer retaliates against an employee twice, once by taking an adverse employment action and then by terminating the employee ninety-one days later, does the filing period begin on the date of the adverse employment action, the date of termination, or does each violation have its own filing period? See, e.g., Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 773–74 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (holding suit was timely because the ninety-day period began on date employees were discharged, not when previous discrete acts of retaliation occurred). 8 IV. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES Justice

Delivered and filed on the 7th day of July, 2022.