City of Valley Mills, Texas v. William Chrisman and Darrin Troxell

• Court: Court of Appeals of Texas
• Decided: November 16, 2023
• Docket: 13-22-00144-CV
• Status: Published

Opinion

NUMBER 13-22-00144-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF VALLEY MILLS, TEXAS, Appellant,

v.

WILLIAM CHRISMAN AND DARRIN TROXELL, Appellees.

On appeal from the 220th District Court of Bosque County, Texas.

MEMORANDUM OPINION

Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Silva

Appellees William Chrisman and Darrin Troxell brought a Texas Whistleblower Act

(Whistleblower Act) suit against their former employer, appellant City of Valley Mills (the

City), wherein they allege that they were terminated after making a good faith report of a violation of law by city employee, William Linn. 1 See TEX. GOV’T CODE ANN. § 554.006(d).

Specifically, Chrisman and Troxell complain that Linn took their personal property without

their consent, and Linn’s conduct amounted to theft, civil conversion, and a violation of

the Texas Theft Liability Act.

By a single issue with multiple subparts, the City asserts that Chrisman and Troxell

failed to plead and present evidence of jurisdictional facts sufficient to bring their claims

within the purview of the Whistleblower Act; thus, the trial court erred in denying the City’s

plea to the jurisdiction. We reverse the trial court’s denial of the City’s plea to the

jurisdiction and render judgment dismissing the suit.

I. BACKGROUND

Chrisman and Troxell began their employment with the City in 2015. In 2017, they

were supervised by Linn, who remained their direct supervisor until the two were

terminated from their employment on July 26, 2017.

Throughout 2017 and prior to their termination, Chrisman and Troxell maintained

personal deer feeders on city property. On or about July 25, 2017, the City removed the

deer feeders at Linn’s direction. Upon learning of the removal, Chrisman and Troxell went

to city hall to speak with Linn, who refused to return the deer feeders. Chrisman then

phoned Mayor Jerry Wittmer, complaining about Linn’s actions. Troxell, meanwhile, called

the City’s Chief of Police Robert Summers, notifying him of their intent to “press charges

for the City Administrator’s theft of [their] deer feeders.”

1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer).

2 Chief Summers confirmed that he received a call on July 25, 2017, from Chrisman

and Troxell seeking his advice as to how to get their deer feeders returned to them. When

Chief Summers spoke with Chrisman and Troxell again the next day, however, they were

now “describing the situation as a matter of ‘theft.’” In response, Chief Summers told

Chrisman and Troxell that the police department would not be getting involved as this

was not a criminal matter. Chief Summers stated that following his conversations with

Chrisman and Troxell, he had intended to speak to Linn or Wittmer concerning Chrisman

and Troxell’s allegations, but they were terminated before he had the opportunity.

On the morning of July 26, 2017, Chrisman and Troxell returned to work, and at

the end of their shift, they were met by Linn. According to Chrisman, Linn declined to give

them their timecards and handed them a document entitled “Return of Personal Property

Held.” Chrisman and Troxell refused to sign the document and were terminated.

Chrisman and Troxell allege that Wittmer later told them: “[T]he main reason we are letting

you go is because [of] this whole thing with the feeders. You should have let me handle

it and you didn’t[;] you got the cops involved, so you’re fired.” Linn asserted that he

terminated Chrisman and Troxell on July 26 due to subpar job performances, refusal to

work until the close of business at 5 p.m., and for their repeated disrespectful conduct

towards City employees.

On July 27, 2017, Chrisman and Troxell filed a complaint against Linn.

Approximately, three months later, Chrisman and Troxell filed suit alleging violations

under the Whistleblower Act. See id. Specifically, Chrisman and Troxell argued they had

been unlawfully terminated from their employment after reporting in good faith that Linn’s

3 actions constituted theft, civil conversion, and a violation of the Texas Theft Liability Act.

Following Chrisman and Troxell’s third amended petition, the City filed its second plea to

the jurisdiction on November 9, 2021—creating the basis of this appeal. 2

In its second plea to the jurisdiction, the City argued Chrisman and Troxell have

“not sufficiently pled facts that would bring this cause under the auspices of the

Whistleblower Act and that no genuine issue of material fact exists as to one or more

essential elements of [appellees’] claims.” More specifically, the City averred that

Chrisman and Troxell failed to advance the “good faith” objectivity component that our

sister court previously determined to be wholly absent in appellees’ initial pleadings. The

City attached several exhibits to its plea to the jurisdiction, including: (1) complaints filed

by Chrisman and Troxell; (2) excerpts taken from Chrisman’s and Troxell’s depositions;

and (3) affidavits by Linn, Chief Summers, and Officer Robert Cannizzaro.

Following a hearing, the trial court denied the City’s plea to the jurisdiction. This

appeal followed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

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

Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324,

331 (Tex. 2020) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex.

2000)). Whether a trial court has subject matter jurisdiction is a question of law that we

2 The events surrounding the City’s initial plea to the jurisdiction and related filings can be found in

our sister court’s previous memorandum opinion, and we will not reiterate those events here except as necessary for the disposition of this proceeding. See City of Valley Mills v. Chrisman, No. 10-18-00265-CV, 2021 WL 1807365, at *1 (Tex. App.—Waco May 5, 2021, no pet.) (mem. op.).

4 review de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 682 (Tex. 2020) (citing

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

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.; see City of San Antonio v. Maspero, 640 S.W.3d 523, 528

(Tex. 2022). The Texas Whistleblower Act provides limited waiver of this immunity. See

TEX. GOV’T CODE ANN. § 554.0035 (providing that that “[a] public employee who alleges a

violation of [the Act] may sue the employing state or local governmental entity,” and

“[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed

under [the Act] for a violation of [the Act]”). “Accordingly, the elements of a whistleblower

claim are jurisdictional facts necessary” to show that a plaintiff’s “claim falls within the

jurisdictional confines of” § 554.0035. City of Fort Worth v. Pridgen, 653 S.W.3d 176, 182

(Tex. 2022) (citing State v. Lueck, 290 S.W.3d 876, 882 (Tex. 2009)). “Because

governmental immunity is jurisdictional, it is properly raised through a plea to the

jurisdiction . . . .” Maspero, 640 S.W.3d at 528; Miranda, 133 S.W.3d at 228.

To prevail on an assertion of governmental 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 jurisdictional facts, our review mirrors that of a traditional summary

judgment motion. Maspero, 640 S.W.3d at 528 (citing Mission Consol. Indep. Sch. Dist.

5 v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)). To that end, “all the evidence is reviewed

in the light most favorable to the plaintiff to determine whether a genuine issue of material

fact exists.” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); see

Maspero, 640 S.W.3d at 528–29 (“[W]e take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.”). “A genuine issue exists if ‘the evidence is such that a reasonable

jury could find that fact in favor of the non-moving party.’” Smith v. Mosbacker, 94 S.W.3d

292, 294 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (quoting Moore v. K Mart

Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied)). “Material facts

are those facts which ‘affect the outcome of the suit under the governing law.’” Id. (quoting

Moore, 981 S.W.2d at 269). If “the pleadings and evidence generate a ‘fact question on

jurisdiction,’ dismissal on a plea to the jurisdiction is improper,” and the fact issue will be

resolved at trial by the factfinder. Maspero, 640 S.W.3d at 529 (citing Univ. of Tex. at

Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam)). “However, ‘if the

evidence is undisputed or fails to raise a fact question,’ the plea must be granted.” Id.

(quoting Hayes, 327 S.W.3d at 116).

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)). “The Whistleblower Act is a

broad remedial measure intended to encourage disclosure of governmental malfeasance

and corruption.” City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008). Thus, it is to

6 be liberally construed in favor of jurisdiction. See Sims, 620 S.W.3d at 379 (citing TEX.

GOV’T CODE ANN. § 554.0035); Scott v. Godwin, 147 S.W.3d 609, 621 (Tex. App.—

Corpus Christi–Edinburg 2004, no pet.); see also Perez v. Cameron County, No. 13-17-

00581-CV, 2018 WL 6219630, at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 29, 2018,

no pet.) (mem. op.).

The employee bears the burden of proving a claim under the Whistleblower Act.

Pridgen, 653 S.W.3d at 182 (citing TEX. GOV’T CODE ANN. § 554.004(a)). To prevail, the

employee must “show that he (1) reported (2) a violation of law by the employer or another

public employee (3) to an appropriate law enforcement authority, (4) the report was made

in good faith, and (5) the adverse action would not have occurred when it did if the

employee had not reported the illegal conduct.” Id. (citing first TEX. GOV’T CODE ANN.

§ 554.002(a); then citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)

(discussing the required causal link between the report and the adverse employment

action)). The term “good faith” is undefined by the statute; however, the Texas Supreme

Court has consistently defined the term as follows: “when (1) the employee believes the

reported information will facilitate identifying or investigating a violation of law by the

employing governmental entity or another public employee, and (2) the employee’s belief

is reasonable in light of the employee’s training and experience.” Pridgen, 653 S.W.3d at

184; Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002). In other words,

the good-faith inquiry under the Whistleblower Act has both subjective and objective

components. Univ. of Hous. v. Barth, 403 S.W.3d 851, 856 (Tex. 2013) (per curiam).

7 Finding the “good faith” objective element to be dispositive, we address this first. See TEX.

R. APP. P. 47.1.

III. DISCUSSION

To meet the objective component of good faith, Chrisman and Troxell bore the

burden to adduce evidence raising a material fact issue regarding whether their belief that

Linn had committed a violation of law—namely, theft, civil conversion, and a violation of

the Texas Theft Liability Act—was reasonable in light of their training and experience.

See Barth, 403 S.W.3d at 856; Tex. Dep’t of Human Services v. Okoli, 440 S.W.3d 611,

614 (Tex. 2014) (providing that the objective standard cannot ignore the perspective of

“a reasonably prudent employee in similar circumstances”). At the outset we note that a

person commits the offense of theft “if he unlawfully appropriates property with intent to

deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03. The City is considered the

“owner” of property if, among other things, the City either (1) possessed the property,

whether lawfully or unlawfully, or (2) had a greater right to possess the property than did

the individual claiming ownership. See id. § 1.07(35)(A); see also Harper v. State, No. 13-

15-00548-CR, 2017 WL 5505743, at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 16,

2017, no pet.) (mem. op., not designated for publication) (applying this definition for city

ownership of property). “Possession” is defined as “actual care, custody, control, or

management.” TEX. PENAL CODE ANN. § 1.07(39). Pursuant to the Texas Theft Liability

Act, a “person who commits theft is liable for the damages resulting from the theft.” TEX.

CIV. PRAC. & REM. CODE ANN. § 134.003. Meanwhile, conversion has been defined as “the

wrongful exercise of dominion and control over another’s property in denial of or

8 inconsistent with his rights.” Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210

n.44 (Tex. 2002) (quoting Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 391 (Tex. 1997))).

To address the “good faith” objectivity component, Chrisman and Troxell amended

their pleading alleging the following:

12. In addition, plaintiffs’ beliefs were reasonable in light of their respective training and experience. Neither plaintiff had attended any law enforcement school or academy; and neither had any training relative to an understanding of “theft” or “to steal” which would differentiate them from the general public. [Chrisman] believes “theft” is defined as “when somebody takes something that is not theirs without the permission of the owner.” [Chrisman] believes “to steal” is defined as “to take something that does not belong to you without permission from the owner to take it.” [Troxell] believes “theft” is defined as “when a person takes something that does not belong to them.” [Troxell] believes “to steal” is “when someone takes something that does not belong to them.”

13. And, both plaintiffs, based on their training and experience, reasonably believed it appropriate to report the theft of property to members of the Valley Mills Police Department because reports of a crime are made to the police. Both also believed the City Administrator’s supervisor, [Whittmer], was the appropriate authority to report a criminal violation, the civil conversion, and the breach of the Texas Theft Liability Act to because the City Administrator’s supervisor could take appropriate action to remedy such violations and/or cause the return of their property to them.

The City asserts that Chrisman’s and Troxell’s amended pleadings amount to

unsupported opinions and baseless conclusions, fail to identify specific evidence that

would have led a reasonable person with the same level of training and experience to

believe that Linn violated the law, and ignore all evidence to the contrary. See Pridgen,

653 S.W.3d at 184 (“Communicating unsupported opinions or legal conclusions is

insufficient.”). Having reviewed the jurisdictional evidence, we agree with the City.

Linn stated in his affidavit attached to the City’s plea to the jurisdiction that he

began directly supervising Chrisman and Troxell in March 2017 after the men were

9 stripped of their titles as co-directors of the City’s Public Works Department. It was then

that Linn purportedly informed appellees that no one was permitted to hunt on city-owned

property because the City did not have the requisite insurance coverage. “[T]here was

not—and has never been, to my knowledge—any license, lease, or other written

authorization allowing anyone to hunt on [c]ity-owned property, including employees,”

said Linn. According to Linn, Chrisman and Troxell were aware of this prohibition, were

asked to enforce this policy, and had been instructed to remove personal deer feeders on

city property on at least two occasions between March and July 2017. Officer Cannizzaro

confirmed via affidavit that Linn told him that Chrisman and Troxell’s awareness of the

prohibition preceded the events of July 26.

In Chrisman’s deposition, he acquiesced to an incident in early 2017 wherein

Chrisman and Troxell, acting under Linn’s direction, removed another individual’s

personal deer feeder from city property. At the time of the deer feeder’s removal,

Chrisman stated that he informed the individual that personal deer feeders were not

permitted on city property, explaining: “You can’t have it on city property. That’s city

property, you can’t have it there.” Troxell does not dispute that they had previously

removed personal deer feeders belonging to other individuals off city property and that

this occurred without warning on at least one occasion.

Thus, irrespective of whether Chrisman and Troxell were, in fact, previously

warned that they could no longer keep their personal deer feeders on city property,

Chrisman and Troxell engaged in the same conduct as part of their employment that they

now accuse Linn of doing. Yet, Chrisman and Troxell do not characterize their actions as

10 unlawful, and they do not dispute the legitimacy of the information they relayed to the

private citizen after his deer feeder was removed without warning—that is, that personal

deer feeders located on city property were subject to removal. To the extent that Chrisman

and Troxell’s complaints meant to challenge administrative polices that were not followed,

such actions are not protected under the Whistleblower Act. See Tex. Health & Human

Servs. Comm’n v. Pope, 674 S.W.3d 273, 288 (Tex. 2023) (“A report expressing

disagreement with remedial measures taken or internal policy recommendations is not a

report of a violation of law that the Whistleblower Act was designed to protect. Nor does

the Act protect a prediction of possible regulatory noncompliance, or a complaint that

internal administrative policies were not followed.”) (cleaned up).

The objective component of good faith is satisfied when “the employee’s belief was

reasonable in light of the employee’s training and experience.” El Paso Healthcare Sys.

v. Murphy, 518 S.W.3d 412, 419 (Tex. 2017). For reasons stated above, Chrisman and

Troxell failed to present evidence that their belief was reasonable considering their

training and experience, and we need not address whether the reports were made to an

appropriate law enforcement authority or whether the causational element is present. See

TEX. R. APP. P. 47.1; City of S. Houston v. Rodriguez, 425 S.W.3d 629, 636–37 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied); see also Crystal City Indep. Sch. Dist. v.

Flores, No. 08-23-00021-CV, 2023 WL 6168262, at *6 (Tex. App.—El Paso Sept. 21,

2023, no pet. h.) (mem. op.) (determining it was objectively unreasonable for employee

to believe colleague’s failing to clock out for a week as a salaried employee, getting her

supervisor’s approval for timekeeping errors after the edits had been entered, “cleaning”

11 the timekeeping system, and scheduling training on the timekeeping system through the

software vendor, rather than the region while on duty constituted theft); Austin Indep. Sch.

Dist. v. Anderson, No. 03-21-00286-CV, 2022 WL 3649357, at *7 (Tex. App.—Austin Aug.

25, 2022, no pet.) (mem. op.) (determining it was objectively unreasonable for employee

to believe colleague’s sleeping while on duty constituted theft). Because Chrisman and

Troxell failed to meet their burden to show that their report was made in “good faith,” as

that term has been interpreted by the courts, their Whistleblower Act claim necessarily

fails, and they cannot show the jurisdictional facts necessary to sustain this cause. See

Pridgen, 653 S.W.3d at 182. Thus, the trial court erred in denying the City’s plea to the

jurisdiction as to this claim. We sustain the City’s sole issue.

IV. CONCLUSION

We reverse the trial court’s denial of the City’s plea to the jurisdiction and render

judgment dismissing the suit.

CLARISSA SILVA Justice

Delivered and filed on the 16th day of November, 2023.