In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00400-CV
CITY OF HEREFORD, APPELLANT
V.
JAVIER FRAUSTO, APPELLEE
On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. CI-16F-076, Honorable Roland Saul, Presiding
January 16, 2018
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL, and PARKER, JJ.
The City of Hereford appeals from an order denying its original and amended plea
to the jurisdiction. Through those motions, the City requested the trial court to dismiss
Javier Frausto’s suit against it. He had sued the City under the Texas Whistleblower Act.
See TEX. GOV’T CODE ANN. §§ 554.001–.010 (West 2012). The record indicates that the
City answered the suit, affirmatively invoked the defense of immunity, and filed the
aforementioned original and an amended plea to the jurisdiction of the court. As specified
in the amended plea, “[t]he subject of this plea to the jurisdiction is the ‘good faith’ report component of Frausto’s Whistleblower Claim.” In other words, the City believed that
Frausto could not prove that a reasonably prudent person with Frausto’s training and
experience would have believed that the purported act allegedly constituting a violation
of the law was such a violation. The trial court denied the plea, and the City appealed.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2017) (authorizing an
interlocutory appeal from an order that “grants or denies a plea to the jurisdiction filed by
a governmental unit as that term is defined in Section 101.001” of the Texas Civil Practice
and Remedies Code, which provision includes cities). For the most part, the argument
urged below forms the basis of the City’s two issues before us. We affirm.
Background
The story begins with a dog (i.e., a husky) running free in a local neighborhood. At
the time, Nena Aguillon and Destiny Martinez were walking two terriers tethered on
leashes. As they walked, the husky ran at and engaged them. The husky’s owner (Macye
White) retrieved the animal, and Aguillon reported the attack to the police. Upon
responding to the report and taking statements from the respective parties, the police
forwarded the incident to the local animal control department for further investigation.
Frausto happened to be the employee of that department tasked with that investigation.
Frausto contacted Aguillon and, thereafter, filed a supplement to the police report.
In that supplement, he said that (1) “Mrs. Aguillon stated to me that she wished to file
charges on . . . [White] . . . for allowing her dog to run at large, [sic] and attacking her”;
and (2) “I also gave Municipal Court Judge Eggan a copy of the incident report to inform
her of the unprovoked attack outside . . . Whites [sic] property . . . . Nothing further at this
time.” Thereafter, Judge Eggan set the matter for hearing per § 822.0423 of the Texas
2 Health and Safety Code to determine whether the husky was a dangerous dog. See TEX.
HEALTH & SAFETY CODE ANN. § 822.0423(a) (West 2017) (stating that “[t]he court on
receiving a report of an incident under Section 822.0422 or on application under Section
822.042(c), shall set a time for a hearing to determine whether the dog is a dangerous
dog”). At some point, the Hereford city attorney became aware of the hearing, purportedly
reviewed the reports submitted to the municipal court judge, and decided to cancel the
hearing.1 Frausto deemed that decision to be unlawful and reported it to the local police
chief. Several weeks later, his employment with the animal control department was
terminated. Believing his termination improper, Frausto sued Hereford for violating the
Whistleblower Act.
Analysis
Per § 554.002 of the Texas Government Code, a state or local government may
not suspend or terminate 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). Establishing the elements
of § 554.002(a) results in the governmental entity losing its sovereign immunity. Id.
§ 554.0035. And, because a claimant under the statute must allege facts in his petition
sufficient to defeat immunity and establish the trial court’s jurisdiction over the suit, he
necessarily must allege facts sufficient to establish the elements of § 554.002(a). See
Leach v. Tex. Tech Univ., 335 S.W.3d 386, 395 (Tex. App.—Amarillo 2011, pet. denied).
1 Via affidavit filed in support of the jurisdictional plea, the city attorney attested that he reviewed the incident reports sent by Frausto, concluded that they did not warrant a hearing, and engaged in an ex parte conversation about his conclusion with the municipal court judge. The judge then purportedly assigned him the task of informing Aguillon of the decision to cancel the hearing. It is unclear whether Frausto’s complaint also encompassed the decision by the city attorney to speak with the judge about the incident outside the presence of anyone else, but he did allege that the attorney engaged in an abuse of office.
3 Yet, in deciding if the suit escapes the bar of sovereign immunity, the trial court is not
restricted merely to the allegations contained in the complainant’s petition. Rather, it may
also consider evidence proffered by the entity in support of its plea to the jurisdiction. See
Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505,
513 (Tex. App.—Austin 2010, no pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226–27 (Tex. 2004)). Proffering such evidence then triggers the
application of a standard of review similar to the one used in deciding motions for
summary judgment. See Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798
(Tex. 2016) (op. on reh’g). That is, the trial court is to (1) interpret the pleadings in a light
most favorable to the party attempting to sustain the existence of jurisdiction, (2) accept
as true all evidence favorable to that party, and (3) indulge in every reasonable inference
arising from the evidence and favorable to upholding jurisdiction. Leach, 335 S.W.3d at
391. And, should the trial court find that a question of fact exists with regard to the
jurisdictional question when so construing the evidence, it must deny the plea to the
jurisdiction and permit the fact-finder to ultimately decide those factual questions. See
Suarez v. City of Tex. City, 465 S.W.3d 623, 633 (Tex. 2015). Only when the evidence
creates no material question of fact may it rule on the plea as a matter of law. See Harris
Cty. Flood Control Dist., 499 S.W.3d at 798.
Next, and as previously mentioned, the only issue before the trial court and us was
and is whether Frausto satisfied the “good faith” component of § 554.002 of the
Government Code. We address nothing else and are asked to address nothing else. Nor
do we in anyway suggest that other elements of § 554.002 were or can be satisfied.
4 Regarding “good faith,” we note that it has both a subjective and objective
component. Tex. Youth Comm’n v. Bollinger, No. 07-11-00152-CV, 2013 Tex. App.
LEXIS 6503, at *5–6 (Tex. App.—Amarillo May 28, 2013, pet. denied) (mem. op.). The
subjective prong requires the employee to actually believe he was reporting a violation of
law to an appropriate law enforcement agency, while the objective component requires
the belief to be objectively reasonable in light of his training and experience of the
employee. Id. (quoting Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex.
2002)).
Here, Frausto alleged two violations of law purportedly committed by the city
attorney. The first appeared in the opening sentence of section “6” of his first amended
petition. Therein, he averred that he “reasonably believed that the cancellation of the
hearing by the city attorney was a violation of Tex. Health & Safety Code § 822.0423.”
Later in the same section he also averred that he “believed . . . such conduct by the city
attorney constituted an abuse of office in violation of Section 39.02(a) of the Texas Penal
Code.” See TEX. PENAL CODE ANN. § 39.02(a) (West 2016) (stating that a “public servant
commits an offense if, with intent to obtain a benefit or with intent to harm or defraud
another, he intentionally or knowingly . . . violates a law relating to the public servant’s
office or employment”).
As represented in his appellee’s brief, Frausto “is no longer purs[u]ing any
Whistleblower claim based upon a report of a violation of Section 39.02 of the Texas
Penal Code.” So, the sole violation pertinent to our review is that relating to the hearing’s
5 cancellation by the city attorney.2 And, we turn to the task of assessing whether the
evidence of record raised a question of fact as to whether it was held in “good faith.”
As for the subjective component of the test, it needs little attention because it was
not the focus of the City’s plea. Nevertheless, evidence appears of record upon which a
fact-finder could find that Frausto actually believed the decision to cancel the hearing
violated the law. As said in his deposition, “the victim deserves a hearing like everybody
else.”
In play is the objective component of the test. The City’s extended discussion on
that topic can be distilled into one simple proposition: because a reasonable animal
control officer would not have believed the husky incident described in the written
investigative reports submitted by the local police and Frausto was sufficient to warrant a
hearing, a reasonable animal control officer would not have believed that cancellation of
the hearing by the city attorney was a violation of the law. The argument is flawed in
several respects.
First, the purpose of the hearing in question was to determine whether the animal
was a “dangerous dog,” as that term is defined by statute. See TEX. HEALTH & SAFETY
CODE ANN. § 822.041(2)(A), (B) (West 2017) (defining a “dangerous dog” as a dog that
(1) “makes an unprovoked attack on a person that causes bodily injury and occurs in a
place other than an enclosure in which the dog was being kept and that was reasonably
certain to prevent the dog from leaving the enclosure on its own” or (2) “commits
2 Because Frausto waived the § 39.02 contention, we do not consider the City’s appellate
arguments concerning whether the ex-employee’s belief about the existence of a § 39.02 violation also satisfied the good faith component of the Whistleblower Act. Nor do we address whether the relinquishment of that allegation somehow impacts the viability of the claim regarding the city attorney’s purported violation of the Health and Safety Code, especially since the City failed to broach the topic on appeal.
6 unprovoked acts in a place other than an enclosure in which the dog was being kept . . .
and those acts cause a person to reasonably believe that the dog will attack and cause
bodily injury to that person”). No one disputes that the Health and Safety Code directs
“[t]he court” to “set a time for a hearing to determine whether the dog is a dangerous
dog,” upon “receiving a report of an incident under Section 822.0422” of the same code.
See id. § 822.0423(a) (emphasis added). That such a hearing actually had been set by
the municipal court is also undisputed. Yet, nowhere does the City address whether either
the Health and Safety Code or other legal authority empowered the city attorney to
unilaterally cancel the proceeding. Nor does it address whether a reasonable person in
the position of Frausto would have believed that the city attorney had the authority to
rescind an edict of the trial court, i.e., cancel the hearing set by the municipal court.
Moreover, in reading the allegations of his live pleading in a light most favorable to him
per Leach, it can be said that Frausto complained about both the hearing being cancelled
and the person who cancelled it. So, irrespective of whether a reasonable officer would
not have believed the incident warranted a hearing, the City nonetheless failed to illustrate
that the same reasonable officer would not have believed the city attorney’s cancellation
of a hearing by the municipal court violated the law. Those are two different matters.
Second, and as previously stated, the municipal court had set the matter for
hearing after receiving the report transcribing the initial complaint to the police dispatcher,
the report from the policeman who initially contacted the parties, and the report from
Frausto. Thus, we have evidence of an intervening decision by an independent jurist who
apparently deemed the complaint worthy of attention. That cannot be ignored in our
assessment of what a reasonable officer in the position of Frausto would have thought.
7 Nevertheless, the circumstance went unmentioned in the City’s analysis. Moreover, the
record contains no evidence regarding whether a reasonable person in Frausto’s position
would have believed the reports failed to warrant a hearing when the court itself scheduled
one after receiving those reports.
Third, the City repeatedly urged both this court and the trial court to apply a
heightened standard when assessing whether a reasonable person would have believed
what Frausto believed. In other words, it urged us to test what Frausto thought against
what a reasonable animal control officer with the same training and experience would
have thought under the same circumstances. No doubt precedent mandates
consideration of the training and experience of an employee in appropriate
circumstances. As said by our Supreme Court in Wichita County, “a workable, fair
standard to determine if a report was made in ‘good faith’ must take into account
differences in training and experience.” Wichita Cty. v. Hart, 917 S.W.2d 779, 785 (Tex.
1996); accord El Paso Healthcare Sys. v. Murphy, 518 S.W.3d 412, 419 (Tex. 2017)
(reiterating that the objective component of good faith is satisfied when “the employee’s
belief was reasonable in light of the employee’s training and experience”). “A police
officer, for example, may have had far more exposure and experience in determining
whether an action violates the law than a teacher or file clerk.” Wichita Cty., 917 S.W.2d
at 785. Applying that standard here though is problematic given the absence of evidence
regarding the training and experience of either Frausto or a typical animal control officer
in Hereford.
It may be that Frausto held the position for almost two decades before being
discharged. Yet, nothing appears of record describing whether those appointed animal
8 control officers in the rural Texas community underwent specialized training or received
any type of certification or the like. Nor can we merely presume that such training must
occur as a prerequisite to being assigned the title “animal control officer” in Hereford,
Texas.
Nor does the record contain evidence of the extent of Frausto’s training, if any. He
may well have served in the capacity of an animal control officer for many years and
participated in numerous hearings like that original scheduled at bar. Yet, merely holding
the position for such a duration does not mean the hypothetically reasonable, rural animal
control officer with some unknown quantum of training and experience would have done
or believed anything differently than Frausto. Without knowing what training an animal
control officer receives, our testing of Frausto’s belief against that of a reasonable animal
control officer with the same unknown training and experience is an impossibility. In other
words, no one provided us the requisite basis for applying the heightened standard
alluded to in Wichita County.
Next, we turn to what does appear of record and apply it to the relevant authority.
The hearing was to determine whether the husky constituted a dangerous dog. And, we
acknowledge that explicit in the definition of a “dangerous dog” is reference to a person,
rather than a dog, suffering bodily injury, as suggested by the City. For instance,
subparagraph (2)(A) of § 822.041 mentions “an unprovoked attack on a person that
causes bodily injury,” TEX. HEALTH & SAFETY CODE ANN. § 822.041(2)(A) (emphasis
added), while (2)(B) alludes to “unprovoked acts . . . [that] cause a person to reasonably
believe that the dog will attack and cause bodily injury to that person.” Id.
§ 822.041(2)(B) (emphasis added). Furthermore, two of the three reports (i.e., the report
9 from the police dispatcher and the initial police report) indicated that the husky only
attacked the dogs that Aguillon and Martinez were walking.
Yet, another report appears in the record, and it is that of Frausto. In it, he
described Aguillon complaining about the husky being allowed to run at large and
“attacking her.” As previously mentioned, we are obligated to read this information in a
light most favorable to Frausto, and, in so reading the third report, we encounter the
allegation of more than a mere dog-on-dog incident. Reference to the dog “attacking her”
is some evidence that the animal also attacked Aguillon, i.e., a person. There is nothing
unreasonable in inferring that a dog which previously attacked a dog without provocation
may cause a person to reasonably believe the same animal will attack and cause bodily
injury to a person. This prevents us from holding, as a matter of law, that a reasonable
animal control officer would deem an allegation of a prior unprovoked attack on multiple
dogs and a person insufficient basis to report a “dangerous dog” incident for purposes of
convening a hearing under § 822.0423 of the Health and Safety Code. At the very least,
the circumstances and information described in all three reports were sufficient impetus
for a presumably unbiased local municipal court judge charged with the job of adjudicating
the situation to notify Aguillon via letter dated April 29, 2014, that a “dangerous dog
hearing has been scheduled for . . . May 5, 2014[,] in regards to the alleged dog attack
on April 24, 2014”.
Admittedly, the City would have us ignore Frausto’s report because (1) it consisted
of mere conclusions and (2) a reasonable animal control officer with comparable training
and experience would not have relied on mere conclusions when assessing whether an
animal was a dangerous dog. But, again, we have no evidence of what training, if any,
10 an animal control officer in Hereford or anywhere else undergoes. Nor do we find
anything in the applicable statutes defining the parameters or content of a dangerous dog
report. We find nothing in the statutes specifying that such reports must contain factual
details, as opposed to factual conclusions, before a “dangerous dog” hearing can be held.
Indeed, all we find is the obligation of a court to set a hearing upon receiving a report of
a “dangerous dog.” Because any “person may report [such] an incident” to the local
municipal, justice or county court, id. § 822.0422(b), the report need not come from only
an animal control officer; it may very well come from a layperson untrained in the art of
report-writing and investigation. That, in turn, suggests the prerequisites of a report are
not as stringent as the City would have us apply here. And, no one can deny that,
irrespective of whether the contents of the reports involved at bar satisfied any heightened
technical standard, they were enough to cause the Hereford municipal court judge to set
a hearing on the Aguillon/husky incident before the city attorney cancelled it. So, arguing
that a reasonable animal control officer would not believe all three documents Frausto
sent to the municipal judge were sufficient to warrant a hearing rings hollow.
Finally, we note that even if one were to ignore the language in Frausto’s report
about the husky “attacking” Aguillon, the evidence of record still evinces an unprovoked
attack by the husky upon dogs being walked by two persons. Such circumstances may
well fall within the scope of a “dangerous dog.” As previously mentioned, the phrase
includes a dog engaging in “unprovoked acts . . . [that] cause a person to reasonably
believe that the dog will attack and cause bodily injury to that person.” Id. § 822.041(2)(B).
Omitted from that passage is language requiring that the “unprovoked acts” only
encompass an attack on a person. This omission distinguishes the scope of
11 § 822.041(2)(B) from that of § 822.041(2)(A) wherein the legislature mentioned “an
unprovoked attack on a person.” Id. § 822.041(2)(A). In other words, the legislature
intended to expand the grasp of § 822.041(2)(B) to encompass incidents outside those
within the scope of § 822.041(2)(A). Those incidents include situations where a person
would reasonably believe that the dog will attack and cause bodily injury irrespective of
whether the person is actually attacked. So, without more evidence than what appears
of record here, we cannot say, as a matter of law, that it would be unreasonable for a
person to think that a large dog known to charge at and bite leashed pets will also bite or
injure; the person holding the leash. Indeed, one need only attempt to end a dog fight or
stop his dog from being attacked by another to test the accuracy of that proposition.
At the very least, a question of fact exists regarding whether Frausto’s belief about
the city attorney violating the law was held in good faith. Consequently, the trial court did
not err in denying the City’s plea to the court’s jurisdiction given the limited grounds
encompassed within the plea. The order doing so is affirmed.
Brian Quinn Chief Justice