David Jones v. City of Port Arthur, Texas

• Court: Court of Appeals of Texas
• Decided: November 17, 2016
• Docket: 09-14-00442-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-14-00442-CV _________________

DAVID JONES, Appellant

V.

CITY OF PORT ARTHUR, TEXAS, Appellee ________________________________________________________________________

On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-193,143 ________________________________________________________________________

MEMORANDUM OPINION

David Jones was employed as an operator of a residential garbage truck with

the City of Port Arthur, Texas (the “City”). After he was terminated and his

administrative appeal to the City denied, Jones sued the City for violation of the

Texas Whistleblower Act. See generally Tex. Gov’t Code Ann. §§ 554.001–.010

(West 2012); Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174, 175 (Tex.

App.—Dallas 2010, pet. denied) (explaining that chapter 554 of the Texas

Government Code is commonly referred to as the “Texas Whistleblower Act”). 1 Jones sought damages and attorney’s fees. The City filed a plea to the jurisdiction

and traditional and no-evidence motions for summary judgment. The trial court

granted the City’s plea to the jurisdiction and motions for summary judgment and

dismissed Jones’s claims against the City. On appeal, Jones contends the trial court

erred and abused its discretion by granting the City’s plea to the jurisdiction and

motions for summary judgment because (1) he presented numerous issues of

material fact that should have been resolved by a jury, and (2) he demonstrated that

the City violated the Texas Whistleblower Act. We affirm the trial court’s order

granting the City’s plea to the jurisdiction.

I. Factual Background

According to Jones’s Third Amended Petition, on May 23, 2012, he was

employed with the City as an operator of a residential garbage truck. Jones

believed the truck assigned to him that day, Truck 1713, was “leaking potentially

flammable hydraulic fluid used by the truck’s hydraulic lift system.” Jones

reported the malfunction with Truck 1713 to the senior mechanic in the City’s

Operations Center of the Public Works Department. Jones alleges that after the

senior mechanic indicated it was a small leak, his immediate supervisor instructed

him to perform his garbage collection duties using Truck 1713. When Jones

refused to operate Truck 1713, he was told to report to Anitra Smith, the City’s

2 Solid Waste Management Division Superintendent. Jones alleges that he informed

Smith that he did not want to operate Truck 1713 “because of the potential

environmental and safety hazards that the hydraulic leak posed to the public and to

the driver of the truck.” Jones claims that he told Smith he believed the operation

of Truck 1713 was “illegal and that he could be cited by law enforcement” for its

operation. According to Jones, he requested another truck to complete his route, or

alternatively asked to delay his route until Truck 1713’s leak could be repaired.

Jones contends that Smith ordered him to operate the leaking truck that day, and

when he refused to comply, Smith “sent him home from work indefinitely, as an

adverse and disciplinary employment action.”

According to Jones’s pleading, on June 11, 2012, he filed an appeal of his

termination to the City’s Appeals Committee. Jones alleges that a hearing was held

and that at the hearing, he presented his complaints regarding the condition of the

garbage trucks and his belief that he had been terminated in retaliation “for his

good faith reports of multiple violations of law by the City pertaining to

environmental compliance and safety and workplace safety.” On June 28, 2012,

Jones was notified by John Comeaux, the acting City Manager, that the Appeals

Committee recommended Jones’s termination be upheld and that Comeaux had

decided to follow the Committee’s recommendation.

3 Jones filed suit against the City on September 12, 2012. After the trial court

granted the City’s plea to the jurisdiction and motions for summary judgment,

Jones filed a motion for new trial, which the trial court denied. Thereafter, Jones

filed a timely notice of appeal.

II. Plea to the Jurisdiction

A trial court lacks subject matter jurisdiction over a suit against a

governmental unit enjoying immunity from suit. City of Houston v. Ranjel, 407

S.W.3d 880, 887 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A party may

challenge a trial court’s subject matter jurisdiction by asserting a plea to the

jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–

26 (Tex. 2004). We review a trial court’s decision on a plea to the jurisdiction de

novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010).

A plaintiff has the burden to allege facts demonstrating jurisdiction, and we

construe the plaintiff’s pleadings liberally in the plaintiff’s favor. See Miranda, 133

S.W.3d at 226. When a governmental unit challenges the existence of jurisdictional

facts, and the parties submit evidence relevant to the jurisdictional challenge, we

must consider that evidence when necessary to resolve the jurisdictional issues

raised. Ranjel, 407 S.W.3d at 887. In our determination, we must take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and

4 resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the

evidence raises a fact question on jurisdiction, then the trial court cannot grant the

plea, and the issue must be resolved by the factfinder. Id. at 227–28. On the other

hand, if the evidence is undisputed or fails to raise a fact question, the trial court

must rule on the plea as a matter of law. Id. at 228. This standard of review

generally mirrors that of a summary judgment. Id.

The City of Port Arthur is a municipality and thus is a local governmental

entity. See Tex. Loc. Gov’t Code Ann. § 271.151(3)(A) (West 2016); Tooke v. City

of Mexia, 197 S.W.3d 325, 345 (Tex. 2006) (“A local governmental entity is

defined to include a municipality.”). Local governmental entities are immune from

suit unless the legislature expressly waives governmental immunity. Lubbock Cty.

Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297,

300 (Tex. 2014). Immunity from suit deprives the courts of jurisdiction and

therefore completely bars a plaintiff’s claim. Id. Under certain circumstances, the

Texas Whistleblower Act (“the Act”) waives a local governmental entity’s

immunity from suit for claims of retaliatory discharge under the Act. Tex. Gov’t

Code Ann. § 554.0035; State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). The

elements of a whistleblower claim are jurisdictional when necessary to ascertain

5 whether a plaintiff has adequately alleged a violation of the Act. Lueck, 290

S.W.3d at 881, 884.

In the City’s plea to the jurisdiction, the City maintained that Jones’s

whistleblower suit was barred by governmental immunity because Jones failed to

meet the required jurisdictional element. The City specifically argued in relevant

part that the trial court lacked jurisdiction over Jones’s whistleblower claim

because: (1) there is no pleading or evidence that Jones filed a report of illegal

activity with an appropriate law-enforcement authority prior to the time the City

decided to terminate Jones; (2) there is no pleading or evidence that any of the

decision-makers had knowledge of Jones’s reports to the United States Department

of Labor’s Occupational Safety and Health Administration (“OSHA”) or to the

Texas Commission on Environmental Quality (“TCEQ”) before Jones was

terminated on June 8, 2012; and (3) there is no causal connection that indicates that

but for Jones’s reports he would not have been terminated under the circumstances.

Both parties submitted evidence relevant to the jurisdictional challenge for the trial

court’s consideration. See Miranda, 133 S.W.3d at 227 & n.6, 231 (explaining that

in the context of a plea to the jurisdiction, it is sufficient that the party previously

filed documentary evidence as an attachment to its plea to the jurisdiction or a

response thereto).

6 III. The Texas Whistleblower Act

The Texas Whistleblower Act prohibits governmental entities on the state

and local level from suspending, terminating, or taking adverse personnel actions

against a public employee who, in good faith, reports a violation of law committed

by the employing governmental entity or another public employee to an

appropriate law-enforcement authority. Tex. Gov’t Code Ann. § 554.002(a). The

City’s plea to the jurisdiction did not contest that Jones was a public employee.

However, the City contested the other elements Jones had to plead to qualify for

the Act’s waiver of immunity, including that Jones made a good-faith report of a

violation of law, that he made a good-faith report to an appropriate law-

enforcement authority, and that he suffered retaliation as a result of making a

qualifying report.

A. Good-Faith Report of a Violation of Law

The Whistleblower Act prohibits a state or local governmental entity from

taking adverse personnel action against a public employee who reports in good

faith a “violation of law[.]” Id. The Act defines “law” as “(A) a state or federal

statute; (B) an ordinance of a local governmental entity; or (C) a rule adopted

under a statute or ordinance.” Id. § 554.001(1). The Act does not require that the

employee identify in the report the specific law he asserts was violated, but there

7 must be some law prohibiting the complained-of-conduct. Wilson v. Dallas Indep.

Sch. Dist., 376 S.W.3d 319, 323 (Tex. App.—Dallas 2012, no pet.). And, the

employee-plaintiff must identify the specific law he asserts was violated at some

point during the litigation. Id. at 327. “A plaintiff appealing a dismissal of a

Whistleblower claim for want of jurisdiction may not assert on appeal that the

conduct described in the report violates a law not identified in the trial court.” Id.

An employee’s report of a violation of law must be in good faith. Tex. Gov’t

Code Ann. § 554.002. The employee “must have believed he was reporting

conduct that constituted a violation of law and his belief must have been

reasonable based on his training and experience.” Gonzalez, 325 S.W.3d at 626. A

report that a violation of the law might occur in the future is not a good-faith report

of an existing or past violation of the law. See id. at 627; Lueck, 290 S.W.3d at 885

(noting that report of possible future regulatory non-compliance does not equate to

reporting a violation of the law).

B. Appropriate Law-Enforcement Authority

Section 554.002(b) of the Government Code defines when a public

employee has made a report to an “appropriate law[-]enforcement] authority”

under the Whistleblower Act:

[A] report is made to an appropriate law[-]enforcement authority if the authority is a part of a state or local governmental entity or of the 8 federal government that the employee in good faith believes is authorized to:

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

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

Id. § 554.002(b). Under the statutory definition, it is not enough that a

governmental entity has general authority to regulate, enforce, investigate, or

prosecute. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 319 (Tex. 2002).

Rather, the entity must have authority to regulate under or enforce the law alleged

to be violated in the public employee’s report, or to investigate or prosecute a

violation a violation of criminal law. Id. at 320. An entity’s authority to internally

discipline its own employees for an alleged violation is insufficient to make that

entity an appropriate law-enforcement authority. Id. at 320, 321. An entity “must

have outward-looking powers.” McMillen v. Tex. Health & Human Servs.

Comm’n, 485 S.W.3d 427, 429 (Tex. 2016). “[F]or an entity to constitute an

appropriate law-enforcement authority under the Act, it must have authority to

enforce, investigate, or prosecute violations of law against third parties outside of

the entity itself, or it must have authority to promulgate regulations governing the

conduct of such third parties.” Univ. of Tex. Sw. Med. Ctr. v. Gentilello, 398

S.W.3d 680, 686 (Tex. 2013). The power to “urge compliance or purge

9 noncompliance” with the law is not included in the Act’s limited definition of law

enforcement powers qualifying an entity as an appropriate law-enforcement

authority. Id. at 684. The Act included “law-enforcement authority” and not “law-

compliance authority[.]” See id. at 685. An entity may itself be subject to

regulation, but not charged with subjecting others to regulation; “being regulated is

not the same as being the regulator.” Id.

Under certain circumstances, however, a Whistleblower Act report may be

made internally. Id. at 686. For example, when an employee works for an entity

with the authority to investigate the citizenry at large for violations of the same

crime reported by the employee an internal report may be internal:

A police department employee could retain the protections of the Whistleblower Act if she reported that her partner is dealing narcotics to her supervisor in the narcotics or internal affairs division. In such a situation, the employee works for an entity with authority to investigate violations of drug laws committed by the citizenry at large.

Id.

The statute provides that even if the entity is not an appropriate law-

enforcement authority, the public employee may still obtain Whistleblower Act

protection if the employee can show that he in good faith believed that the entity to

which he reported the violation of the law was an appropriate law-enforcement

authority. Needham, 82 S.W.3d at 320. However, it is not enough that an employee

10 had a strongly felt or sincerely held belief that he had reported to the appropriate

law-enforcement entity. Gentilello, 398 S.W.3d at 683. The “good-faith”

requirement in the Act has both objective and subjective elements. Id. To be in

“good faith,” an employee must not just believe the entity was an appropriate law-

enforcement authority under the Act, but his belief must be “reasonable in light of

the employee’s training and experience.” Needham, 82 S.W.3d at 321. A plaintiff

can only satisfy the good-faith requirement if he is able to show that a reasonably

prudent public employee in similar circumstances would have believed he had

made the report to an appropriate authority. Id. at 320–21; see also Gentilello, 398

S.W.3d at 683. It is not enough that the employee believed the entity to which he

reported had the power to discipline its own employees or investigate internally the

alleged violation of the law. Gentilello, 398 S.W.3d at 686; Needham, 82 S.W.3d

at 321. Likewise, a belief that the entity could forward the report of the violation of

the law on to another entity for prosecution is not evidence of a good-faith belief.

Needham, 82 S.W.3d at 321; Office of the Att’y Gen. v. Weatherspoon, 472 S.W.3d

280, 282 (Tex. 2015). Furthermore, that an entity has a division within it charged

with investigating and prosecuting crimes, does not transform the entire entity into

an appropriate law-enforcement entity. Weatherspoon, 472 S.W.3d at 283. Rather,

the plaintiff-employee must show that he reported directly to a division or

11 department within the entity that has the appropriate law-enforcement authority

contemplated by the Act. See Tex. Dep’t of Human Servs. v. Okoli, 440 S.W.3d

611, 614 (Tex. 2014).

In Okoli, the plaintiff was an employee of the Texas Department of Human

Services (“TDHS”). Id. at 612. He was fired after reporting misconduct within the

TDHS to his supervisors. Id. at 613. The plaintiff filed suit under the

Whistleblower Act. Id. TDHS argued that the trial court lacked jurisdiction

because the plaintiff failed to make a good-faith report of a violation of law to an

appropriate law-enforcement authority. Id. The Court considered whether the

plaintiff’s report was made to an appropriate law-enforcement authority when he

reported the violation to his supervisors, who in turn were required to forward the

complaint to the Office of Inspector General (“OIG”), a division within TDHS that

had outward-looking law-enforcement authority. Id. at 612-13, 614. The Supreme

Court rejected this argument and reiterated that generally “reports up the chain of

command are insufficient to trigger the Act’s protections.” Id. at 614. The Court

explained that when a public employee has knowledge that “the report will have to

be forwarded elsewhere for regulation, enforcement, investigation, or prosecution,

then the employee is not reporting ‘to an appropriate law[-]enforcement

authority.’” Id. at 615 (quoting Tex. Gov’t Code Ann. § 554.002). The Court

12 further explained that “[t]he fact that the OIG is an internal division of TDHS does

not change the analysis.” Id. at 616. For the OIG to have received the plaintiff’s

report, someone had to forward the reports to the OIG. Id. at 615.

C. Adverse Employment Action Caused by Making Report

Even if a plaintiff establishes that he made a good-faith report of a violation

of law to an appropriate law-enforcement authority, he must still show that he

suffered retaliation as a result of his making the report. City of Fort Worth v.

Zimlich, 29 S.W.3d 62, 67 (Tex. 2000); see Tex. Dep’t of Human Servs. v. Hinds,

904 S.W.2d 629, 633 (Tex. 1995) (“[A] public employee can recover under the

Whistleblower Act only if he proves that he was suspended, terminated or

discriminated against ‘because’ . . . he reported a violation of the law in good faith

to an appropriate law enforcement authority”). To establish causation in a

Whistleblower Act case, a public employee must demonstrate that after he reported

a violation of law in good faith to an appropriate law-enforcement authority, the

employee suffered discriminatory conduct by his employer that would not have

occurred when it did if the employee had not made the report. Zimlich, 29 S.W.3d

at 67; City of Houston v. Levingston, 221 S.W.3d 204, 226 (Tex. App.—Houston

[1st Dist.] 2006, no pet.) (op. on reh’g). That is, a plaintiff “must establish a ‘but

for’ causal nexus between his report of the illegal activity and the employer’s

13 prohibited conduct.” Levingston, 221 S.W.3d at 226; see Hurley v. Tarrant Cty.,

232 S.W.3d 781, 786 (Tex. App.—Fort Worth 2007, no pet.) (explaining that

“[t]his causation standard has been described as a ‘but for’ causal nexus

requirement”). However, the plaintiff need not show that the Whistleblower report

was the sole reason for the adverse personnel action. Hinds, 904 S.W.2d at 634.

A plaintiff can establish a causal link between the adverse employment

action and the report of a violation of law through circumstantial evidence,

including evidence that the employer (1) had knowledge of the report of a violation

of law, (2) expressed a negative attitude toward the employee’s report, (3) failed to

adhere to established policies regarding employment decisions, (4) subjected the

employee to discriminatory treatment in comparison to similarly situated

employees, and (5) stated a false reason for the adverse employment decision.

Zimlich, 29 S.W.3d at 69; Levingston, 221 S.W.3d at 226. The plaintiff must show

that the person who took the adverse employment action—the decision-maker—

knew of the employee’s report of illegal conduct. Harris Cty. v. Vernagallo, 181

S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also

Kirkland v. City of Austin, No. 03-10-00130-CV, 2012 WL 1149288, at *2 (Tex.

App.—Austin Apr. 5, 2012, no pet.) (mem. op) (stating that a plaintiff must show

“at a minimum . . . that the person who took the adverse employment action knew

14 of the employee’s report of illegal conduct”) (internal quotations omitted)). A trial

court’s decision to grant a plea to the jurisdiction in a Whistleblower case can be

based upon insufficient evidence of causation. See Canutillo Indep. Sch. Dist. v.

Farran, 409 S.W.3d 653, 656 (Tex. 2013).

D. Application of the Law to Jones’s Reports

Jones contends that he made reports of three different violations of the law,

including that the City was operating garbage trucks on the public streets in an

unsafe condition; (2) that a City official committed perjury; and (3) that the City

had committed “Water Code/Environmental Violations[.]” Jones argues that he

reported these violations of the law to various appropriate law-enforcement

authorities, including: (1) the City Manager; (2) the Director of Public Works; (3)

various members of the City Council; (4) the Superintendent of the City’s Solid

Waste Division; (5) the City’s Appeals Committee; (6) OSHA; and (7) the TCEQ.

We analyze each of Jones’s reports below to determine if any of his reports qualify

him for protection under the Whistleblower Act.

1. Report to the City Manager-John Comeaux

On appeal, Jones argues that John Comeaux, as the City Manager, is an

appropriate law-enforcement authority under the Act and that he reported a

violation of the law to him. However, Jones’s pleadings contain no allegations that

15 he made any reports to the City Manager. There is a letter in the record dated May

23, 2012 and addressed to the “Human Resource Dept.” and to the “acting City

Manager[.]” On appeal, Jones argues that this letter amounts to a report of a

violation of the law to the City Manager. However, Jones does not cite us to any

portion of his petition where he properly alleged this letter as a qualifying report

under the Act, and we find none. In fact, Jones’s petition does not reference the

May 23, 2012 letter at all.

Jones had a reasonable opportunity to amend his pleadings in response to the

City’s plea and in fact previously amended his pleadings twice in response to the

City’s jurisdictional challenge. See Harris Cty. v. Sykes, 136 S.W.3d 635, 639

(Tex. 2004) (explaining that if a plaintiff has been provided a reasonable

opportunity to amend his pleadings after a governmental entity files its plea to the

jurisdiction, and the plaintiff’s amended pleading still does not allege facts that

would constitute a waiver of immunity, then the proper remedy is dismissal).

Despite these amendments, Jones has not pleaded facts to establish he made a

qualifying report to the City Manager.

Even if Jones had properly alleged this report in his pleadings, we would not

be able to find that the report satisfies the requirements of the Act. In the letter,

Jones first complains about adverse employment actions he has suffered as a result

16 of posts he made on the Internet criticizing Ross Blackketter, the Director of Public

Works for the City, for creating racial tension and oppression within the

department. Second, he complains about the City’s inconsistent stance on policies.

Third, he complains that Smith’s action in sending him home was “an attempt to

retaliate because [he] ‘blew the whistle’ on poor vehicle policy and made people

aware about discrimination on the part of [Blackketter].” 1

Jones argues his letter to the City Manager essentially reported a violation of

section 547.004(a)(1) of the Texas Transportation Code when he complained that

his supervisor asked him to operate a truck that was leaking hydraulic fluids, and

when he refused, the City sent him home and allowed someone else to drive the

truck. Section 547.004(a)(1) provides that “[a] person commits an offense that is a

misdemeanor if the person operates or moves or, as an owner, knowingly permits

another to operate or move, a vehicle that . . . is unsafe so as to endanger a

person[.]” Tex. Transp. Code Ann. § 547.004(a)(1) (West 2011). A necessary

element of finding a person or entity has violated this statute is that the person

actually operates the vehicle. See id. If the person or entity is the owner of the 1 To the extent that Jones alleges the City took adverse personnel actions against him in retaliation for his reports of discrimination, we note that as a matter of law, retaliation claims by public employees based on reports of discrimination are not actionable under the Texas Whistleblower Act. See City of Waco v. Lopez, 259 S.W.3d 147, 155-56 (Tex. 2008); see also Tex. Lab. Code Ann. §§ 21.001, 21.055 (West 2015). 17 vehicle, then it is also a necessary element that the person or entity have

knowledge of the unsafe nature of the vehicle. See id.

Jones’s May 23, 2012 letter does not assert that the City knowingly allowed

an employee to operate an unsafe vehicle. Rather, in the letter, Jones specifically

informed the City Manager that the City’s mechanic inspected the truck and found

it was safe to operate. Jones informed the City Manager that when he refused to

operate the truck, another City employee took the truck out, but ultimately had to

return the truck because the leak became worse. Jones, however, does not assert

that the leak had progressed to the point that the truck was in an unsafe condition

before the employee returned the truck to the garage. Jones does not report that the

truck was unsafe or actually operated in an unsafe condition. Jones does not report

that the truck posed an environmental or safety risk. Rather, he states very plainly

that he refused to drive the truck because he did not want to get “blamed for taking

a truck out knowing it is broken.” He is very clearly complaining about

inconsistent policies regarding truck use and maintenance. We conclude that

Jones’s report to the City Manager did not describe conduct that would violate

section 547.004(a)(1) of the Texas Transportation Code.

Jones may have believed that his letter to the City Manager constituted a

report of a violation of law; however, his belief had to have been reasonable based

18 on his training and experience. See Univ. of Houston v. Barth, 403 S.W.3d 851,

856-57 (Tex. 2013). Jones testified that he graduated from high school and

obtained two associates degrees, one in management development and the other in

process technology. He served in the United States Marine Corps and was assigned

to a supply unit. Jones worked for the Texas Department of Criminal Justice

(“TDCJ”), but was terminated from that position based on an allegation that he

retaliated against an inmate. In response to his termination, Jones filed a

discrimination claim against TDCJ, but the claim was dismissed for failing to “hit

all the parameters of race[.]” Jones testified that he has never worked as a

mechanic on vehicles and has had no training as a mechanic. Jones does not

dispute that the senior mechanic told him the truck was safe to operate that day.

We conclude that Jones has failed to present evidence that it was reasonable, in

light of his training and experience and the circumstances presented, for him to

believe that the conduct he reported to the City Manager—that the City allowed a

driver to drive a vehicle the mechanic inspected and deemed safe—was a violation

of the law. At most, Jones’s letter reflects his dissatisfaction with the City’s

policies and inconsistent application thereof. As such, the letter cannot form the

basis for a report of a violation of law. See Tex. Gov’t Code Ann. §§ 554.001(1),

554.002(a).

19 2. Report to the Director of Public Works-Ross Blackketter

Next, Jones contends that Blackketter, as the Director of Public Works for

the City, was an appropriate law-enforcement authority under the Act. Again,

however, our review indicates that Jones’s pleadings contain no allegations that he

made any reports to Blackketter. Even after amending his pleadings twice to

address the City’s jurisdictional challenges, Jones has not pleaded facts to establish

he made a qualifying report to Blackketter.

Even if Jones had properly pleaded facts to support this contention, the only

reports that Jones argues on appeal that he made to Blackketter were not reports he

actually made to Blackketter, but rather reports Jones made to other City

employees that Jones assumes were ultimately forwarded to Blackketter. There is

no evidence that Smith told Blackketter that Jones had reported that his truck was

unsafe to drive or that there were possible environmental issues with Truck 1713.

In fact, Smith testified that she did not tell Blackketter that Jones had reported

these issues because, according to Smith, Jones had not reported these issues to

her. And, in Blackketter’s affidavit, he stated that he was not aware of Jones

making any report of any violation of law by the City or its employees prior to his

decision to initiate termination proceedings on May 23, 2012. Therefore, we

conclude there is no evidence in the record that Jones made a report to Blackketter

20 as contemplated by the Act. See Tex. Gov’t Code Ann. § 554.002(b). See also

Okoli, 440 S.W.3d at 614–15.

3. Report to City Council Member-Kerry Thomas

Jones also contends that members of the City Council generally are

appropriate law-enforcement authorities. In his brief, Jones argues that he made

reports to multiple members of the City Council. However, in his petition and in

his appellate brief, Jones only identifies one council member to whom he claims he

made a qualifying report—Kerry Thomas. In his Third Amended Petition, Jones

alleged that on May 16, 2012, he reported to Thomas that Blackketter had

knowingly lied to the City Council during an official meeting about the existence

of “official City preventative maintenance records” that showed the City’s Solid

Waste Department had been adequately maintaining its garbage trucks. Jones

alleged various violations of the Penal Code and stated that it is within the City’s

authority through the City’s Police Department to investigate these violations.

Jones did not allege that Thomas directly had the authority to regulate under,

enforce, investigate, or prosecute a violation of the Penal Code. See Needham, 82

S.W.3d at 320. That the City has a division within it, the Police Department,

charged with investigating and prosecuting crimes, does not transform the entire

City as a governmental entity into an appropriate law-enforcement entity. See

21 Weatherspoon, 472 S.W.3d at 283. Rather, to satisfy the requirements of the Act,

Jones had to show that he reported the alleged violation of law directly to the

City’s Police Department. See Okoli, 440 S.W.3d at 614. Here, there is no evidence

in the record that Jones ever reported a violation of the Penal Code to the City’s

Police Department.

Even if a member of the City Council were considered an appropriate law-

enforcement authority, Jones has failed to show that he, in good faith, reported a

violation of the law. Jones alleged that his report to Thomas about Blackketter was

essentially a report of a violation of law under sections 37.01(2), 37.02(a)(2),

37.09(a)–(d), and 37.10 of the Texas Penal Code. Section 37.02(a)(2) of the Texas

Penal Code provides that a person commits the offense of perjury if, with intent to

deceive and with knowledge of the statement’s meaning, the person makes a false

unsworn declaration under the Unsworn Declaration provision of the Texas Civil

Practices and Remedies Code. Tex. Penal Code Ann. § 37.02(a)(2) (West 2011).

The unsworn declaration covered in section 37.02 is statutorily defined as a written

declaration that is subscribed by the person making the declaration as true under

penalty of perjury. Tex. Civ. Prac. & Rem. Code Ann. § 132.001(c) (West Supp.

2016). The conduct described in Jones’s report to Thomas, as alleged in his

pleading and reflected in the evidence, does not support a violation of section

22 37.02(a)(2). Furthermore, there are no pleadings or any evidence to support that

Jones believed in good faith that he reported a violation of this law.

Section 37.09 of the Texas Penal Code describes the offense of “Tampering

With or Fabricating Physical Evidence[.]” Tex. Penal Code Ann. § 37.09 (West

Supp. 2016). It provides that a person commits an offense under this section if,

knowing that an investigation or official proceeding is pending or in progress, the

person “alters, destroys, or conceals any record, document, or thing with intent to

impair its verity, legibility, or availability as evidence in the investigation or

official proceeding” or “makes, presents, or uses any record, document, or thing

with knowledge of its falsity and with intent to affect the course or outcome of the

investigation or official proceeding.” Id. § 37.09(a). Subsection (d) of section

37.09 provides that a person also commits an offense under this section if

“knowing that an offense has been committed,” he “alters, destroys, or conceals

any record, document, or thing with intent to impair its verity, legibility, or

availability as evidence in any subsequent investigation of or official proceeding

related to the offense[.]” Id. § 37.09(d)(1). Section 37.10 describes the offense of

“Tampering With Governmental Record[.]” Id. § 37.10. It provides that a person

commits an offense under this section if he:

(1) knowingly makes a false entry in, or false alteration of, a governmental record; 23 (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;

(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;

(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;

(5) makes, presents, or uses a governmental record with knowledge of its falsity; or

(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

Id. Section 37.01(2) defines “[g]overnmental record[,]” in relevant part, as

including “anything belonging to, received by, or kept by government for

information, including a court record[.]” Id. § 37.01(2)(A).

Jones does not allege any facts and there is no evidence in the record to

show that at the time he spoke to Thomas, Jones, in good faith, believed that

someone was currently, or had in the past, tampered with, altered, concealed, or

otherwise fabricated evidence or government records. Jones appears to concede

this point in his brief. Jones argues on appeal that “[t]he issue and concern for the

City Mechanic and [Jones were] that maintenance records (which clearly qualify as

‘government records’ within the meaning of § 37.01(2)(A) of the Penal Code)

24 might be fabricated after the fact to support [Blackketter’s] false statements.”

(emphasis added). Jones further argues that “if there was a concern that

maintenance records might be fabricated, § 37.09(a)--(d) would apply.” (emphasis

added). He then argues that had Thomas directed the Police Department to

investigate Jones’s report, then “a potential plan to fabricate City documents”

would have been discovered. (emphasis added). Even if Jones believed that

Blackketter might violate laws in the future, belief in the possibility of a future

violation is not evidence that he made a good-faith report of an existing or past

violation of law. See Gonzalez, 325 S.W.3d at 627; Lueck, 290 S.W.3d at 885.

4. Report to the Solid Waste Department’s Superintendent-Anitra Smith

In his Third Amended Petition, Jones alleged that on May 23, 2012, he

reported to the senior mechanic that Truck 1713, which was assigned to him, was

“leaking potentially flammable hydraulic fluid used by the truck’s hydraulic lift

system.” The senior mechanic informed Jones that the leak was small, and Jones’s

immediate supervisor ordered Jones to perform his garbage collection route using

Truck 1713. When Jones refused to operate Truck 1713, he was instructed to report

to Smith. Jones alleged he reported to Smith on May 23, 2012 and informed her

that he did not want to operate Truck 1713 “because of the potential environmental

and safety hazards that the hydraulic leak posed to the public and to the driver of

25 the truck.” Jones alleged that he told Smith that he believed the operation of Truck

1713 “was illegal and that he could be cited by law enforcement for operating the

truck.” Jones alleged that Smith had the power and authority to prevent the

operation of defective residential garbage trucks by the City’s employees and was

responsible for implementing the City’s program of garbage collection with the use

of properly maintained vehicles and equipment and properly trained staff.

On appeal, Jones contends that the primary violation of law that he reported

was the operation of Truck 1713 on the public streets while in an unsafe condition

in violation of section 547.004(a)(1) of the Texas Transportation Code. As noted

above, section 547.004(a)(1) provides that “[a] person commits an offense that is a

misdemeanor if the person operates or moves or, as an owner, knowingly permits

another to operate or move, a vehicle that . . . is unsafe so as to endanger a

person[.] Tex. Transp. Code Ann. § 547.004(a)(1). As with Jones’s report to the

City Manager, Jones’s report to Smith did not include a report that an actual

violation of the Transportation Code was occurring or had occurred in the past.

Rather, he reported his concern that operating the truck on the road would be a

violation of the law. Jones’s concern regarding the potential of a future violation of

law is not evidence that he made a good-faith report of an existing or past violation

of law. See Gonzalez, 325 S.W.3d at 627; Lueck, 290 S.W.3d at 885.

26 Jones may have believed that his report to Smith concerned a violation of

law; however, his belief had to have been reasonable based on his training and

experience. See Barth, 403 S.W.3d at 856-57. Jones testified that he had never

been stopped or cited for problems with the condition of the City’s garbage trucks.

He cites to no evidence of his past experiences that would support his subjective

belief that he had reported a violation of law to Smith. In his deposition, Jones

expressed concerns over things that could have happened had he taken the truck

out that day. It is also undisputed that Jones’s truck was inspected that day and

determined to be safe to operate. We conclude that Jones has failed to present

evidence that it was reasonable, in light of his training and experience and the

circumstances presented, for him to believe that the conduct he reported to Smith

was a violation of the law. At most, Jones reported his refusal to drive Truck 1713

for fear that he would violate an unspecified law.

Additionally, Jones has not shown that he in good faith believed Smith was

an appropriate law-enforcement authority under the Act. On appeal, he claims that

Smith was not just his “supervisor,” but as a “department head” within the City,

Smith was a City official and, as such, was an appropriate law-enforcement

authority. He contends that a genuine issue of material fact exists as to whether it

was reasonable for him to believe that Smith was an appropriate authority to

27 enforce “whether Port Arthur allowed the operation of residential garbage trucks

with leaking hydraulic systems over the streets of Port Arthur[.]”

Even if we accept as true Jones’s assertion that Smith had authority to

enforce certain laws within her department, the type of internal authority to require

or prohibit one’s own employees from driving trucks in violation of a law is

insufficient to make Smith an appropriate law-enforcement authority. See

Needham, 82 S.W.3d. at 320, 321. The authority described by Jones is not the type

of “outward-looking powers” the Act requires. See McMillen v. Tex. Health &

Human Servs. Comm’n, 485 S.W.3d 427, 429 (Tex. 2016).

Moreover, Jones’s testimony suggests that when he reported to Smith, it was

not reasonable for him to believe that Smith was an appropriate law-enforcement

authority to address the violation of law he contends he made. Jones testified that

when employees reported problems with the trucks to Smith, she informed the

employees that she could not do anything about it and directed them to speak to

Blackketter. Jones has not alleged or presented any evidence to raise a fact issue as

to whether Smith had the authority to enforce, investigate, or prosecute violations

of the Texas Transportation Code against third parties outside the City’s

government structure. See Univ. of Tex. Sw. Med. Ctr. v. Gentilello, 398 S.W.3d

680, 686 (Tex. 2013).

28 Jones further argues that he reported unspecified “Water Code” violations

and “Environmental Violations” to Smith. In his Third Amended Petition, Jones

does not associate any specific Texas Water Code violation with his report to

Smith, and he never alleges that Smith had the appropriate authority under the Act

to address a violation of the Water Code. Jones alleges generally that sections

26.0136 and 26.121 of the Water Code give the City the authority to “manage and

enforce the implementation of water quality management functions and the

protection of its watershed against activities that may cause the discharge of

pollutants into its water supply or its watershed.”

Section 26.011 of the Water Code provides that unless specifically stated

otherwise, the Texas Natural Resource Conservation Commission (“TNRCC”)

shall administer the provisions of chapter 26 and control the water quality of the

State and establish the level of water quality to be maintained. Tex. Water Code

Ann. § 26.011 (West 2008). While the Water Code defines “Commission” as the

TNRCC, the TNRCC changed its name as part of the agency’s 2001 sunset review

to the TCEQ. See Tex. Water Code Ann. § 7.001(1); Act of May 28, 2001, 77th

Leg., R.S., ch. 965, § 18.01, 2001 Tex. Gen. Laws 1985; see FPL Farming Ltd. v.

Envtl. Processing Sys., L.C., 351 S.W.3d 306, 308 n.2 (Tex. 2011). Section

26.0136(a) of the Code sets forth the enforcement authority for violations of

29 provisions within chapter 26 of the Code, which governs “Water Quality

Control[.]” See id. §26.0136(a). It provides that the Commission is the State

agency with primary responsibility for implementation of water quality

management functions, including enforcement actions within the State. Id. §§

26.001, 26.0136(a). Subpart (b) of this statute provides in relevant part that this

section is not intended “to enlarge, diminish, or supersede the water quality

powers, including enforcement authority, authorized by law for . . . local

governments.” Id. § 26.0136(b). Section 26.121 governs discharges of waste and

pollutants into or adjacent to water in the State. See generally id. § 26.121. We

note that sections 26.121 and 26.027 of the Code provide that there are

circumstances in which the Commission may issue permits and amendments to

permits for the discharge of waste or pollutants into or adjacent to water in the

State. Id. §§ 26.027, 26.121.

Even if we were to assume that Jones reported a violation of the Texas

Water Code when he made a report to Smith, Jones has failed to show that Smith

was an appropriate law-enforcement authority under the Whistleblower Act.

Section 26.0136(b) of the Texas Water Code does not give local governments the

authority to enforce violations of chapter 26. See id. § 26.0136(b). Rather, it

provides that the provisions of chapter 26 do not diminish authority that may be

30 granted to local authorities by other laws. See id. Jones has not alleged any

provisions of the Texas Water Code expressly giving local governments the

authority to enforce the provisions of chapter 26. We conclude that Jones has failed

to show that Smith was an appropriate law-enforcement authority under the Act.

See Gentilello, 398 S.W.3d at 687 (“A supervisor looking into and addressing

possible noncompliance in-house bears little resemblance to a law-enforcement

official formally investigating or prosecuting that noncompliance on behalf of the

public, or a regulatory authority charged with promulgating or enforcing

regulations applicable to third parties generally.”). We further conclude that Jones

has not presented any evidence that it was reasonable in light of his training and

experience in the department to conclude that Smith had authority outside the

department to enforce Water Code provisions generally. See id. at 689. For all of

these reasons, Jones cannot rely upon his report to Smith to form the basis of his

Whistleblower claim.

5. Report to the City’s Appeals Committee

In his Third Amended Petition, Jones alleges that under the City’s grievance

procedure, on June 28, 2012, he spoke at the appeal hearing of his termination.

Jones alleges that during the hearing, he reported to the Appeals Committee “the

dangers of leaking hydraulic fluid from its garbage trucks” and that he informed

31 the Appeals Committee that he had reported safety violations to OSHA. Jones

informed the Appeals Committee that “he believed that he had been terminated in

retaliation for his good-faith reports of multiple violations of law by the City

pertaining to environmental compliance and safety and workplace safety.” Jones

alleges that the Appeals Committee retaliated against him for this report by

recommending that Jones’s termination be upheld. He further claims that the City

Manager retaliated against him by accepting the Appeals Committee’s

recommendation.

To the extent that Jones is claiming on appeal to this Court that he made a

qualifying Whistleblower report to the Appeals Committee, we conclude that Jones

has failed to allege or otherwise show that the Appeals Committee was an

appropriate law-enforcement authority to report any violations of the law regarding

the garbage trucks. The very nature of the Appeals Committee suggests its

authority is restricted solely to compliance-type issues within the City. Jones has

presented no evidence to show that the Appeals Committee had any law-

enforcement authority over anyone other than the City’s own employees.

Moreover, even had Jones presented evidence that he subjectively believed the

Appeals Committee was an appropriate law-enforcement authority, we conclude

32 that he has failed to allege or present any evidence to show that this belief was

objectively reasonable in light of his training and experience.

6. Report to OSHA and the TCEQ

In his Third Amended Petition, Jones alleges that sometime before June 8,

2012, he reported the unsafe working conditions at the City’s Solid Waste

Department to OSHA. He also alleges that sometime before June 8, 2012, he filed

a complaint with the TCEQ accusing the City of violating title 30, section

330.103(a) of the Texas Administrative Code by failing to collect municipal solid

waste containing putrescibles at least once a week.2 See generally 30 Tex. Admin.

Code § 330.103(a) (Westlaw current through 41 Tex. Reg. No. 8226, dated Oct.

14, 2016) (Tex. Comm’n. Envtl. Quality) (“Municipal solid waste (MSW)

containing putrescibles shall be collected a minimum of once weekly to prevent

propagation and attraction of vectors and the creation of public health nuisances.”).

The complaints that Jones filed with OSHA or the TCEQ are not in the appellate

record. However, in his sworn answers to interrogatories, Jones states that he filed

his report to the TCEQ sometime between May 24, 2012, and June 8, 2012. In the

same answers, he states that he made a report to OSHA on May 24, 2012. 2 Jones alleged that he reported that the City violated “30 TAC §300.103(a) pertaining to [the City’s] failure to collect municipal solid waste containing putrescibles, a minimum of once per week.” Inasmuch as this is an apparent typographical error, we refer to the correct statutory provision herein. 33 Therefore, both reports were made after Smith decided to send Jones home

indefinitely and initiate termination proceedings on May 23, 2012.

Even if Jones could show that either his report to OSHA or his report to the

TCEQ was a good-faith report of a violation of law to an appropriate law-

enforcement authority, Jones is still required to show that his making the report

caused him to suffer retaliation. See Zimlich, 29 S.W.3d at 67. The City contends

that Jones cannot show causation regarding his OSHA and TCEQ reports because

the evidence shows that the relevant decision-makers had no knowledge of these

reports prior to making their respective decisions to terminate Jones.

Jones argues that there is a genuine issue of material fact regarding the date

he was terminated. He contends that the notice of termination from the City is

inherently contradictory on this point because it was signed and approved on June

7, 2012, but the notice states that the termination is effective dating back to May

23, 2012. He argues that “[a]t best, the evidence shows that [Jones] was not

terminated before June 8, 2012, when he was given [the notice].”

However, it is undisputed that the City made a decision to take adverse

personnel action against Jones on May 23, 2012, when Smith sent Jones home

indefinitely for his refusal to drive Truck 1713. In Jones’s Third Amended Petition,

he alleges that Smith “sent him home from work indefinitely, as an adverse and

34 disciplinary employment action.” It is also undisputed that later the same day,

Smith and Blackketter signed a notice of termination concerning Jones’s

employment with the City. By June 7, 2012, all of the required decision-makers

had approved the decision to terminate Jones and had signed the notice of

termination. The termination notice is signed by Smith, Blackketter, Comeaux, and

Albert Thigpen, the Director of Personnel. Jones received his notice of termination

on June 8, 2012.

Jones had the burden to present some evidence that at least one of these

decision-makers knew about his reports to OSHA or the TCEQ when he or she

took adverse personnel action against him. There is no evidence in the record to

show affirmatively that any of the decision-makers were aware of these complaints

before they made the decision to terminate Jones. In fact, the evidence in the

record supports that the decision-makers were not aware of these complaints. Jones

testified that he never informed Smith or Blackketter that he had filed complaints

with TCEQ or OSHA. Jones testified that he did not send copies of his TCEQ

complaint to the City and could not recall if he had sent the City a copy of his

OSHA complaint. When asked whether he ever told anyone at the City that he was

speaking to TCEQ, Jones responded, “I’m not sure.” The only evidence of Jones

informing anyone with the City that he had filed a complaint with either OSHA or

35 TCEQ comes from his argument before the Appeals Committee. While the full

transcript of this hearing is not in the record, the parties both acknowledge that

Jones informed the Committee that he had filed a report with OSHA.

In Smith’s affidavit, she states that prior to making her decision to terminate

Jones, she was not aware that Jones had made any report of a violation of law to

either the TCEQ or to OSHA. In Blackketter’s affidavit, he likewise states that he

had no knowledge of Jones’s complaints to the TCEQ or to OSHA prior to making

his decision to support the termination of Jones. Comeaux, in his sworn affidavit,

states that prior to his decision to approve the notice of termination, he had no

knowledge of Jones’s complaints to the TCEQ or to OSHA. He further states that

he had no knowledge of these complaints prior to his decision to follow the

recommendation of the Appeals Committee in upholding Jones’s termination. The

record does not contain an affidavit from Thigpen, but there is no evidence in the

record that Thigpen was aware of Jones’s complaints prior to his decision to

approve the notice of termination. While there is evidence that Thigpen was the

chairperson on the Appeals Committee, his position appeared to be that of a non-

voting member. Jones received his notice of termination on June 8, 2012. As such,

that Jones mentioned his OSHA complaint during his hearing before the Appeals

36 Committee is not informative of Thigpen’s knowledge prior to making a decision

related to Jones’s termination.

In Canutillo Independent School District v. Farran, the employee of a

school district reported violations of law regarding the use of government funds

and waste disposal regulations to the school district’s superintendent, assistant

superintendent, internal auditor, and the school board. 409 S.W.3d at 654. In

March 2009, after the employee had complained about the violations of the law,

the employee was suspended for making threatening calls to a man whom he

believed was having an inappropriate relationship with the employee’s wife. Id. at

654-55. In May, the board voted to give the employee notice of termination. Id. at

655. In July, the employee contacted the FBI regarding the conduct he had

previously complained about. Id. The school district became aware of the

employee’s report to the FBI. Id. In August, the board held a due process hearing

on the employee’s termination. Id. The hearing officer determined good cause

existed for the employee’s termination and recommended that the board’s initial

termination decision be sustained. Id. In September, the board accepted the hearing

officer’s recommendation, and the employee was terminated. Id.

In concluding that the employee failed to show causation under the

Whistleblower Act, the Texas Supreme Court noted that the employee was

37 suspended and had been given notice of the board’s intent to terminate him before

the employee made the report to the FBI. Id. at 656. The Court explained that for

the employee to prevail on a claim that the FBI report caused his termination, the

employee would have to show that but for the report, the school district would

have changed its mind and retained him. Id. The Court concluded that there was

legally insufficient evidence from which a reasonable and fair-minded factfinder

could make such a finding. Id. According to the Court, the employee’s “evidence

showed that from the initiation of [the] termination proceedings, prior to the FBI

report, the District never wavered in its view that [the employee] should be

terminated.” Id. The Court found no evidence in the record that the school board

would have been persuaded to change its mind but for the FBI report, that the FBI

report had any influence on the hearing officer’s recommendation that the initial

termination decision be sustained, or that the report in any way played a role in the

board’s initial or final termination decision. Id. The Court affirmed the trial court’s

judgment granting the plea to the jurisdiction. Id. at 657.

Here, there is no evidence in the record that the City wavered in its view that

Jones should be terminated. The evidence showed that prior to Jones’s reports to

OSHA and the TCEQ, Jones’s supervisors had decided to terminate his

employment with the City. There is no evidence that at any point in time relevant

38 to Jones’s termination, any of the decision-makers learned or had knowledge of

Jones’s reports to the TCEQ or OSHA prior to making their decisions. In fact, the

evidence in the record shows conclusively that the decision-makers had no prior

knowledge of Jones’s reports, so he could not have been terminated because of

those reports. See Vernagallo, 181 S.W.3d at 25; Kirkland, 2012 WL 1149288, at

*2. Moreover, there is no evidence that anyone, including the Appeals Committee,

would have changed their decision but for the OSHA and TCEQ reports. We

conclude that Jones has failed to establish that he suffered retaliation as a result of

making a report to either OSHA or the TCEQ. See Farran, 409 S.W.3d at 656; see

also Barth, 403 S.W.3d at 857 (concluding that a Whistleblower report to the

university police was not a report to an appropriate law-enforcement authority

when the employee did not make the report of the violation of the law until after

the alleged retaliatory acts occurred); Tex. Dep’t of Aging & Disability Servs. v.

Loya, 491 S.W.3d 920, 927 (Tex. App.—El Paso 2016, no pet.) (concluding that

the trial court erred in refusing to dismiss retaliation claim under the Texas

Commission on Human Rights Act when employee’s protected activity could not

have caused the adverse employment decision because employee did not engage in

protected activity until after she received notice of her termination); Esparza v.

Univ. of Tex. at El Paso, 471 S.W.3d 903, 914 (Tex. App.—El Paso 2015, no pet.)

39 (holding that employer’s alleged retaliatory acts that occurred before plaintiff filed

EEOC charge could not have been caused by the EEOC filing).

IV. Conclusion

Jones failed to establish an objective, good-faith belief that he reported an

alleged violation of the law to appropriate law-enforcement authorities that caused

him to suffer an adverse personnel action under the Act.3 Accordingly, we

conclude that the trial court did not err in determining it lacked jurisdiction over

Jones’s Whistleblower action and in dismissing the cause. We overrule Jones’s two

issues and affirm the trial court’s judgment.

AFFIRMED.

______________________________ CHARLES KREGER Justice

Submitted on May 22, 2015 Opinion Delivered November 17, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.

3 Because our determination as to the trial court’s ruling on the City’s plea to the jurisdiction is dispositive, we need not address any issues concerning the trial court’s ruling on the City’s motion for summary judgment. See Tex. R. App. P. 47.1. 40