Rebekha Montie v. Bastrop County ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00123-CV
Rebekha Montie, Appellant
v.
Bastrop County, Appellee
FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
NO. 28,961, HONORABLE REVA TOWSLEE-CORBETT, JUDGE PRESIDING
MEMORANDUM OPINION
After Rebekha Montie was terminated from her job as a manager for an animal
shelter in Bastrop County, she filed a suit against Bastrop County alleging that she was fired in
violation of the Texas Whistleblower Act (the “Act”). See Tex. Gov’t Code §§ 554.001-.010. In
particular, she alleged that she was fired after she reported that her supervisor, Diane Mollaghan,
who was the director for the shelter and Bastrop County Animal Services, was guilty of cruelty to
animals. Specifically, Montie urged that Mollaghan failed to timely euthanize shelter animals that
were injured or ill and failed to maintain the animals at the shelter by not providing them with
adequate water and food or properly cleaning their cages, and she contended that Mollaghan’s
actions led to overcrowding and suffering by numerous animals, which Montie asserted violated
provisions of the Penal Code as well as the Bastrop County Rabies and Animal Control Order
(“Order”). See Tex. Penal Code § 42.092 (prohibiting cruelty to nonlivestock animals); Order § 8.1
(prohibiting abandonment, abuse, or neglect of animals as specified in section 42.092 of Penal
Code). In response, Bastrop County filed a plea to the jurisdiction contending that the district court
did not have jurisdiction over the case because Montie did not comply with the requirements for a
claim under the Act. Subsequently, the district court convened a hearing on the plea. Once the
district court considered the parties’ various arguments, it issued an order denying Bastrop County’s
plea. Bastrop County appealed that ruling. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(8)
(allowing party to pursue interlocutory appeal of trial court’s ruling denying plea to jurisdiction filed
by governmental unit), 101.001(3) (defining “[g]overnmental unit” as including counties). In its
appeal, Bastrop County argued that “the district court does not have jurisdiction over Montie’s
claims because she did not make a report to an appropriate law-enforcement authority,” as required
by the Act, when she allegedly informed two members of the Bastrop County Commissioners’ Court
(“Commissioners’ Court”) about the misconduct. Bastrop Cty. v. Montie, No. 03-14-00424-CV,
2015 WL 1611944, at *3 (Tex. App.—Austin Apr. 9, 2015, no pet.) (mem. op.). After considering
the arguments offered by the parties, this Court determined “that Montie could not reasonably
have believed that the two commissioners were an appropriate law-enforcement authority.” Id.
Accordingly, we concluded “that Montie was not entitled to protection under the Act” and reversed
“the order of the district court denying Bastrop County’s plea to the jurisdiction.” Id. However, we
also remanded “the case to the district court to allow Montie an opportunity to replead” “because the
pleadings [did] not establish that Montie’s claims suffer from an incurable jurisdictional defect.” Id.
On remand, Montie amended her petition and asserted, among other things, that she
made a complaint to an appropriate law-enforcement authority when she reported the alleged
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misconduct by Mollaghan to Mollaghan herself. In response, Bastrop County filed a second plea
to the jurisdiction asserting that the district court did not have jurisdiction over Montie’s claims
because Montie’s claims did not satisfy the requirements of the Act. Further, as support for its
arguments, Bastrop County attached an affidavit from the Chief Deputy of the Bastrop County
Sheriff’s Office, Charlie Littleton, to its plea. Subsequent to Bastrop County filing its plea, Montie
filed a motion to strike Littleton’s affidavit. After considering the arguments by the parties, the
district court denied Montie’s motion to strike and granted Bastrop County’s plea to the jurisdiction.
In three issues on appeal, Montie challenges the district court’s rulings on her motion to strike and
on Bastrop County’s plea to the jurisdiction. We will reverse the district court’s order granting
Bastrop County’s plea to the jurisdiction and remand the case for further proceedings.
STANDARD OF REVIEW
“Subject matter jurisdiction presents a question of law” that appellate courts “review
de novo.” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013). Accordingly, appellate
courts perform a de novo review of a trial court’s ruling on a plea to the jurisdiction. Westbrook v.
Penley, 231 S.W.3d 389, 394 (Tex. 2007); see Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004) (explaining that “[a] plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction”). When performing this review, courts look to the plaintiff’s
petition to determine “whether the facts pled affirmatively demonstrate that jurisdiction exists.”
State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). “If the pleadings are insufficient to establish
jurisdiction but do not affirmatively demonstrate an incurable defect, the plaintiff should be afforded
the opportunity to replead.” Id. at 643. However, if “the pleadings affirmatively negate the existence
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of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an
opportunity to amend.” Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.
2004). When, as here, “an action is grounded in statute, subject matter jurisdiction must be shown
under the applicable statute.” Arnold v. Price, 365 S.W.3d 455, 459 (Tex. App.—Fort Worth 2011,
no pet.). Moreover, if a plea “challenges the existence of jurisdictional facts, [appellate courts]
consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional
issues raised.” Miranda, 133 S.W.3d at 227. Where a challenged jurisdictional fact overlaps with
the merits and where “the evidence creates a fact question . . . [,] the trial court cannot grant the plea
to the jurisdiction, and the fact issue will be resolved by the fact finder.” Id. at 227-28.
In addition, the jurisdictional questions at issue in this appeal involve statutory
construction, which appellate courts also perform de novo. See Texas Lottery Comm’n v. First State
Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall v. Hughes, 246 S.W.3d 621,
625 (Tex. 2008). When performing this analysis, our primary objective is to give effect to the
legislature’s intent. Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex. 2011); State v. Shumake, 199 S.W.3d 279,
284 (Tex. 2006). In ascertaining that intent, we rely on the plain meaning of the words in the statute
“unless a different meaning is supplied by legislative definition or is apparent from the context, or
the plain meaning leads to absurd results.” DeQueen, 325 S.W.3d at 635; see Entergy Gulf States,
Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Shumake, 199 S.W.3d at 284. If “a statute’s
words are unambiguous and yield but one interpretation,” we “give such statutes their plain meaning
without resort to rules of construction or extrinsic aids.” Combs v. Roark Amusement & Vending,
L.P., 422 S.W.3d 632, 635 (Tex. 2013). Moreover, we look to the entire act and not just to “isolated
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portions,” 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008), and we read the statute as a
whole, In re Ford Motor Co., 442 S.W.3d 265, 280 (Tex. 2014). Furthermore, we presume that “the
Legislature selected language in a statute with care and that every word or phrase was used with a
purpose in mind,” DeQueen, 325 S.W.3d at 635, and we endeavor not to interpret a statute “in a
manner that renders any part of the statute meaningless or superfluous,” Columbia Med. Ctr. of Los
Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008).
DISCUSSION
Motion to Strike
In her second issue on appeal, Montie challenges the district court’s ruling regarding
her motion to strike the affidavit from Littleton that Bastrop County attached to its plea to the
jurisdiction. In his affidavit, Littleton explained that he is the Chief Deputy of the Bastrop County
Sheriff’s Office and assists the Sheriff in administering “the activities of the deputies in the various
departments,” including the Estray Division. See Black’s Law Dictionary 631 (9th Ed. 2010)
(defining “[e]stray” as “[a] valuable tame animal found wandering and ownerless; an animal that has
escaped from its owner and wanders about”). In addition, he related that animal-cruelty cases are
investigated by deputies for the Estray Division “who would then submit a completed investigation
to the” district attorney. Further, he explained that although the animal shelter was under the
supervision of the Sheriff’s Office at the time that Montie was hired, supervision was later
transferred to the Commissioners Court. When discussing Mollaghan, Littleton explained that she
“was a Department Head in charge of the administrative and operational duties of the Shelter” and
directed “the day to day operation of the animal shelter” but did not “conduct criminal investigations
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of animal cruelty” and had no “authority to regulate or enforce animal cruelty criminal laws.”
Finally, he related that “Mollaghan was not a State of Texas certified peace office or prosecutor and
therefore, could not investigate or prosecute criminal violations of law against anyone, including any
violations of law against herself.”
When challenging the district court’s ruling, Montie asserts that the affidavit was
not submitted until two years after the discovery period expired and 47 days before the scheduled
trial date. See Tex. R. Civ. P. 190.3 (setting out level-two discovery control plan). Further, Montie
contends that Bastrop County failed to disclose Littleton as either an expert or as a person with
knowledge of relevant facts in its response to requests for disclosures under Rule of Civil Procedure
194 and highlights that Bastrop County’s response was never supplemented. See id. R. 194.2(e), (f).
Similarly, Montie observes that when she sent notice of her intent to depose Bastrop County, Bastrop
County did not designate Littleton as its witness even though Montie informed Bastrop County that
one of the matters that would be discussed during the deposition was “[t]he extent to which Bastrop
County animal control officers are authorized to enforce law, ordinances, and regulations prohibiting
animal cruelty.” See id. R. 199.2(b) (requiring organization named in notice to “designate one or
more individuals to testify on its behalf and set forth, for each individual designated, the matters
on which the individual will testify”). Furthermore, although Montie’s live pleadings prior to the
remand did not present her theory that she made a report to Mollaghan, Montie insists that
Bastrop County was on notice of this claim because she stated in response to Bastrop County’s
interrogatories that she informed Mollaghan about various instances of alleged animal cruelty and
that she believed Bastrop County Animal Control was an appropriate law-enforcement authority to
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make the report to. Similarly, Montie notes that in her sworn deposition she stated that she reported
the unlawful treatment of animals to Mollaghan.
In light of the preceding, Montie urges that the district court should have granted her
motion to strike Littleton’s affidavit under Rule of Civil Procedure 193.6. See id. R. 193.6. Under
that Rule, “[a] party who fails to make, amend, or supplement a discovery response in a timely
manner may not introduce in evidence the material or information that was not timely disclosed, or
offer the testimony of a witness (other than a named party) who was not timely identified” unless the
court finds that there “was good cause for the failure to timely make, amend, or supplement the
discovery response” or that the failure “will not unfairly surprise or unfairly prejudice the other
parties.” Id. R. 193.6(a). Further, the burden of showing good cause or the absence of unfair surprise
or prejudice is on the party seeking to introduce the witness or evidence. Id. R. 193.6(b); see also
Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992) (providing that “[t]he rule is
mandatory, and its sole sanction—exclusion of evidence—is automatic, unless there is good cause
to excuse its imposition”). “A finding of good cause or lack of unfair surprise or unfair prejudice
must be supported by the record.” Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, 2013 WL
6465637, at *10 (Tex. App.—Austin Nov. 27, 2013, pet. denied) (mem. op.). In this case, the
district court’s order does not specify whether it found that good cause was present or that there was
no unfair surprise or unfair prejudice, but appellate courts “must uphold a trial court’s ruling on
[admissibility of evidence] on any legal theory on which it could have properly relied.” See id. In
addition, “[t]he trial court has discretion to determine whether the offering party has met its burden
of showing good cause to admit evidence that was not timely identified.” Id. “A trial court ‘abuses
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its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law,’” BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002)
(quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)), or if it acts
“without reference to any guiding principle,” Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647,
649 (Tex. 1990).1
In its response to Montie’s motion to strike and during the hearing on the motion to
strike, Bastrop County emphasized the fact that Montie’s prior petition asserted that she made reports
to two County Commissioners but did not contend that she made any report to Mollaghan. Further,
Bastrop County noted that this Court previously determined that the County Commissioners were
not appropriate law-enforcement authorities and reversed the district court’s decision denying
Bastrop County’s prior plea to the jurisdiction but remanded the case to the district court to allow
Montie an opportunity to replead. Finally, Bastrop County highlights that it submitted Littleton’s
affidavit after Montie filed her amended petition asserting that she made a report to Mollaghan and
that Mollaghan was an appropriate law-enforcement authority with whom to file a report.
Given our ultimate determination that Montie’s petition affirmatively pleaded facts
asserting that she was fired from her job in violation of the Act and that the evidence submitted
1
We note that one of our sister courts of appeals has questioned whether the Rules of Civil
Procedure governing the disclosure of information pertaining to an opposing party’s expert witnesses
apply to expert testimony in a plea-to-the-jurisdiction context. See Schronk v. City of Burleson,
387 S.W.3d 692 (Tex. App.—Waco 2009, pet. denied). In particular, our sister court explained that
although “an expert’s affidavit is not admissible summary-judgment evidence if the expert has not
been properly designated under Rule 194.2,” “we are unaware of any decision applying this same
principle in the context of a plea to the jurisdiction, and we decline to do so.” Id. at 707. Given our
ultimate resolution, we need not decide whether the consequences for failing to timely “make,
amend, or supplement a discovery response” outlined above apply in the context of a plea to the
jurisdiction. See Tex. R. Civ. P. 193.6(a).
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demonstrates that there are fact questions regarding whether Montie’s termination violated the Act
even if the district court considered the affidavit attached to Bastrop County’s plea to the jurisdiction,
we need not address in this appeal whether the district court abused its discretion by denying
Montie’s motion to strike and will assume for the sake of argument that the affidavit was properly
considered. See Tex. R. App. P. 47.1 (noting that opinions need only address issues necessary to
disposition of appeal).
Plea to the Jurisdiction
In her first and third issues on appeal, Montie contends that the district court erred
by granting Bastrop County’s plea to the jurisdiction. In her first issue, Montie asserts that the
district court erred because she alleged sufficient facts in her petition to establish that jurisdiction
over the case exists by asserting that each of the essential elements of a Whistleblower claim were
met. In her third issue, Montie contends that even if the district court properly considered Littleton’s
affidavit, there were fact issues precluding the district court from granting Bastrop County’s plea to
the jurisdiction. We will address those issues together.
Governing Law
As mentioned above, this case was filed under the Act, “which waives sovereign
immunity from suit for retaliatory discharge under certain circumstances,” Texas Comm’n on
Envtl. Quality v. Resendez, 450 S.W.3d 520, 521 (Tex. 2014) (citing Tex. Gov’t Code § 554.0035),
and “protects public employees who in good faith report violations of law to an appropriate
law-enforcement authority,” Texas Dep’t of Human Servs. v. Okoli, 440 S.W.3d 611, 612 (Tex.
9
2014). Stated differently, the Act “prohibits a state or local governmental entity from taking adverse
personnel action against ‘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.’” Id. at 613-14 (quoting Tex. Gov’t Code § 554.002(a)). “Because the Act is remedial
in nature, it should be liberally construed to effect its purpose.” City of Houston v. Levingston,
221 S.W.3d 204, 218 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “[I]ts legislative purpose” is “to
enhance openness in government and compel the government’s compliance with the law by protecting
those who inform authorities of wrongdoing.” University of Houston v. Barth, 178 S.W.3d 157,
162 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The elements of a Whistleblower claim “are
jurisdictional and may not be waived.” University of Houston v. Barth, 403 S.W.3d 851, 854 (Tex.
2013) (per curiam). Under the Act, a plaintiff is required to prove the following: “(1) that he was
a public employee, (2) that he reported a violation of law in good faith, (3) that the violation of law
reported was committed by his employing governmental entity or another public employee, (4) that
the report was made to an appropriate law enforcement authority, and (5) that his employing
governmental entity took an adverse personnel action against him because of the report.” Texas
Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 849 (Tex. App.—Austin 2007, pet. denied);
see Tex. Gov’t Code § 554.002(a).
In its current version, the Act provides that a report is made to an “appropriate law
enforcement authority . . . if the authority is part of a state or local governmental entity or the 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
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law.” Tex. Gov’t Code § 554.002(b). To satisfy the above requirement, a plaintiff seeking
protection under the Act “must prove that the report was made to an appropriate law-enforcement
authority, or that the employee had a good-faith belief that it was.” Okoli, 440 S.W.3d at 614. “An
employee’s belief is in good faith if: (1) the employee believed the governmental entity qualified,
and (2) the employee’s belief was reasonable in light of the employee’s training and experience.”
Id. The “second element is an objective one,” and the employee only receives protection under
the Act “if a reasonably prudent employee in similar circumstances would have believed the
governmental entity to which he reported a violation of law was an appropriate law-enforcement
authority.” Id.; see also Resendez, 450 S.W.3d at 522 (explaining that claimant must satisfy both
subjective and objective requirements); University of Tex. Sw. Med. Ctr. at Dallas v. Gentilello,
398 S.W.3d 680, 689 (Tex. 2013) (stating that Act “restricts ‘law-enforcement authority’ to its
commonly understood meaning”). The good-faith inquiry “turns on more than an employee’s personal
belief, however strongly felt or sincerely held.” Gentilello, 398 S.W.3d at 683.
Public Employees and Alleged Violation Committed by Mollaghan
When she filed her petition, Montie alleged that the animal shelter was a
governmental entity, that she worked for the shelter as an employee, that Mollaghan was the director
of the shelter, and that Mollaghan violated section 42.092 of the Penal Code and section 8.1 of the
Order when carrying out her duties as director. In its plea, Bastrop County did not dispute Montie’s
allegations that the shelter was a governmental entity, that Montie worked for the shelter as a public
employee, that Mollaghan was a public employee, or that Mollaghan was the person who Montie
alleged committed the misconduct at issue. See Tex. Gov’t Code § 554.001(2) (providing that local
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governmental entities include counties), (4) (defining “‘[p]ublic employee’” as “an employee . . .
who is paid to perform services for a state or local governmental entity”). In addition, Bastrop
County did not present any evidence contradicting any of those allegations. Accordingly, we must
conclude that Montie’s petition affirmatively pleaded facts asserting that she and Mollaghan were
public employees and that Mollaghan was the individual who violated the criminal laws at issue.
Report Concerning Violation of Law
In her petition, Montie alleged that Mollaghan violated provisions of the Penal
Code and the Order and that she reported these violations to Mollaghan. When Bastrop County
challenged in its plea whether a report regarding violations of law had been made, it first questioned
whether Montie’s pleadings properly alleged violations of law. In presenting her Whistleblower
claim, Montie relied on section 42.092 of the Penal Code and section 8.1 of the Order. Section
42.092 provides, in part, that a person commits an offense if he “intentionally, knowingly, or
recklessly” “tortures an animal” or “fails unreasonably to provide necessary food, water, care, or
shelter for an animal in the person’s custody.” Tex. Penal Code § 42.092(b)(1), (3). Section 8.1
directly invokes section 42.092 and similarly provides, in part, as follows: “No owner shall fail to
provide an animal in his/her care with sufficient good and wholesome food and water, with the water
available to the animal 24/7, adequate shelter and protection from weather, veterinary care when
needed to prevent suffering, grooming when lack thereof would adversely affect the health of the
animal, and with humane care and treatment.” Order § 8.1. When making her claim, Montie alleged
that Mollaghan’s failure to timely approve euthanasia requests for animals led to overcrowding
and led “to the unreasonable suffering of several mortally injured and/or terminally ill animals.”
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Independent of those assertions, Montie also alleged that Mollaghan failed to provide proper food
and water to the animals at the shelter and failed “to provide clean and sanitary accommodations for
the animals” at the shelter. In light of the invoked governing law, we must conclude that Montie has
alleged violations of law.
Next, Bastrop County seemed to suggest that no qualifying report was made because
Montie alleged that she orally informed Mollaghan of her concerns but did not allege that she
submitted a written report. However, we have been unable to find support for the assertion that a
report must be written to qualify for protection in either the language of the Act or case authority
interpreting the Act. Moreover, we note that construing the Act in the manner suggested by Bastrop
County would seem inconsistent with the public policy of encouraging public employees to report
violations of law committed by governmental actors by shielding the employees from retaliation for
making the reports because that construction would allow for and perhaps even encourage retaliatory
practices before a complaint has been memorialized in written form. Cf. Levingston, 221 S.W.3d
at 218 (explaining that Act is “designed to enhance openness in government and to compel the
government’s compliance with law by protecting those who inform authorities of wrongdoing”).
Finally, Bastrop County suggested that the evidence that it attached to its plea
established that the report was not made in good faith because the evidence showed that the true
origin of the conflict in this case was a protracted disagreement between Montie and Mollaghan
that was unrelated to any of the misconduct asserted in Montie’s petition and instead was based
on Montie’s disapproval of the way that Mollaghan was running the shelter. As support for this
proposition, Bastrop County referred to the depositions of Charlotte Collins, who was the human
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resources officer for the shelter, and of County Commissioner Gary Snowden. In their depositions,
they recalled several complaints that Montie made to them regarding Mollaghan’s management of
the shelter that were unrelated to any alleged acts of animal cruelty.
However, Commissioner Snowden also explained in his deposition that Montie made
several complaints to him that are similar to the ones at issue in this case, including that the shelter
animals were not being properly cared for, that the kennels were not being cleaned, and that the
animals were not being adequately fed. Further, although the evidence presented by Bastrop County
indicates that Montie had a disagreement with Mollaghan that was separate from any alleged
violation of the Penal Code or the Order, “[t]he fact that an employee harbors malice toward an
individual should not negate the Whistleblower Act’s protection if the employee’s report of a
violation of law was honestly believed and objectively reasonable given the employee’s training and
experience.” Wichita Cty. v. Hart, 917 S.W.2d 779, 786 (Tex. 1996). To the extent that Bastrop
County asserts that Montie’s testimony that she made reports to Mollaghan should not be credited
in light of the other evidence, resolution of that question is in the province of the factfinder.
Moreover, Montie asserted in her petition that she made the report to Mollaghan based on her
observations while working at the shelter, and Montie explained in her deposition that she had
experience identifying animal cruelty and enforcing laws prohibiting it because she previously issued
citations for animal cruelty in her prior employment. In addition, Bastrop County did not challenge
or present evidence contradicting Montie’s assertion that she informed Mollaghan about the unlawful
conduct that forms the basis for her Whistleblower case.
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In light of the preceding, we must conclude that Montie’s petition affirmatively
pleaded facts asserting that Montie reported violations in good faith and that nothing in the evidence
presented by Bastrop County conclusively negated this element of a Whistleblower claim.
Appropriate Law-Enforcement Authority
In her petition, Montie alleged that Mollaghan was an appropriate law-enforcement
authority and that she had a good-faith belief that Mollaghan was an appropriate law-enforcement
authority because, as the director for the shelter, Mollaghan was the supervisor of all of Bastrop
County’s animal-control officers and because animal-control officers are charged with enforcing
animal-cruelty laws.
In its plea and in the primary focus of its appellate briefing, Bastrop County argues
that Mollaghan was not an appropriate law-enforcement authority and that Montie could not have
had a good-faith belief that Mollaghan was an appropriate authority.2 First, Bastrop County asserts
that Montie’s making a report to Mollaghan was not a report to an appropriate authority because
courts have held that reports to supervisors do not qualify and because even under Montie’s
allegations, Mollaghan would have had to order one of the animal-control officers to issue a citation.
Specifically, Bastrop County insists that Montie’s contention that Mollaghan was an appropriate
authority “lacks logic and fails to meet the necessary prerequisites of reporting to an appropriate law
enforcement agency” because it would require Mollaghan to order a “subordinate animal control
2
When discussing good faith, Bastrop County also noted in its plea that Montie admitted in
her deposition that she did not make a report to anyone in the Sheriff’s Department or the District
Attorney’s Office regarding her concerns.
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officer [to] issue[] citations to herself for animal cruelty.” As support for these propositions, Bastrop
County primarily refers to the following cases in which the supreme court determined that a report
made to an employee’s supervisor did not qualify for protection: Texas Department of Human
Services v. Okoli, 440 S.W.3d 611 (Tex. 2014); State v. Lueck, 290 S.W.3d 876 (Tex. 2009); Texas
Department of Transportation v. Needham, 82 S.W.3d 314 (Tex. 2002). However, we believe that
those cases are distinguishable from the circumstances presented here.
In Okoli, Okoli worked for the Department of Human Services, which “was charged
with administering welfare programs.” 440 S.W.3d at 612. Okoli believed that his supervisor was
falsifying documents, informed his supervisor of his concerns, and later made those same allegations
to individuals “even higher up the chain of command.” Id. at 613. After his employment was
terminated, Okoli filed a claim under the Act “alleging that he was terminated for reporting that
his supervisor falsified dates and documents,” and the Department filed a plea to the jurisdiction
asserting that Okoli did not make a report to an appropriate law-enforcement authority. Id.
Ultimately, the supreme court determined that Okoli had not made a report to an appropriate law-
enforcement authority and could not have had good-faith belief that he had done so. Id. at 617. In
its analysis, the court relied on the fact that the memorandum that the Department gave to its
employees regarding how to report wrongdoing specified that violations of the Penal Code would
be referred to the Department’s Office of Inspector General for possible prosecution. Id. at 612, 614;
see Tex. Gov’t Code § 531.102(a) (specifying that Office of Inspector General is responsible “for
the prevention, detection, audit, inspection, review, and investigation of fraud, waste, and abuse in
the provision and delivery of all health and human services in the state” and for “enforcement of
16
state law relating to the provision of those services”). Further, the court explained that when, as in
that case, “an employee reports wrongdoing internally with the 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.’” Okoli, 440 S.W.3d at
615 (quoting Tex. Gov’t Code § 554.002) (emphasis added in Okoli).
The court reached a similar result in Lueck. In that case, Lueck worked for the
Department of Transportation and sent an email to his supervisor regarding potential consequences
if a private vendor breached its contract with the Department because the Department did not pay
the vendor approximately $350,000, including the possibility that the Department will not be in
compliance with various state and federal standards for “collecting, analyzing, and reporting traffic
data.” 290 S.W.3d at 879. After Lueck’s supervisor confirmed that the Department would not pay
the disputed charge, the Department fired Lueck, and Lueck sued the Department and alleged that
his email constituted a report of a violation of law to an appropriate law-enforcement authority. Id.
When determining that Lueck’s supervisor was not an appropriate law-enforcement authority, the
court explained that as the head of a division within the Department, Lueck’s supervisor “could
neither regulate nor enforce the” federal and state regulatory reporting requirements that Lueck
asserted might have been violated if the vendor breached its contract with the State. Id. at 885.
Moreover, the court emphasized that “Lueck’s e-mail report indicates that he knew [his supervisor]
was not the proper authority within [the Department] to regulate the reported violations because
he recommended that [his supervisor] have his email ‘readily available’ when discussing the
implications . . . with other [Department] divisions.” Id. at 886. Accordingly, the court determined
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that the email “conclusively establishes that Lueck could not have formed a good-faith belief that
[his supervisor] was authorized to enforce such violations.” Id.
In Needham, the supreme court made a similar ruling. Specifically, the court
determined that a report to Needham’s supervisor at the Department of Transportation did not
constitute a report to an appropriate law-enforcement authority and that there was “no evidence to
support a finding that Needham had a good faith belief that [the Department] was an appropriate
law enforcement authority.” 82 S.W.3d at 315. Needham worked for the information-systems division
of the Department and informed his supervisor and other employees that he suspected that one of
his co-workers had committed the offense of driving while intoxicated during a business trip. Id.
at 315-16. After he made the reports, he was demoted, and he sued the Department. Id. at 317.
When concluding that the Department was not an appropriate law-enforcement authority, the court
explained that the Department does not have the “authority to regulate under or enforce [] Texas’s
driving while intoxicated laws” or “to investigate or prosecute these criminal laws” and further
explained that, “[a]t most, [the Department] has authority to regulate and investigate its employees’
conduct only to carry out its internal disciplinary process procedures.” Id. at 320. Moreover, the
court rejected the idea that the “‘appropriate law enforcement authority’ definition includes an
employer’s ability to discipline an employee for allegedly violating the law.” Id. at 321. When
determining that there was “no evidence to support a finding that Needham had a good faith belief
that [the Department] was an appropriate law enforcement authority under the Whistleblower Act
to report a co-worker’s drunk driving,” the court emphasized that “the only evidence Needham
relies on to support that he could have subjectively or objectively believed he was reporting to the
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appropriate law enforcement authority is [the Department]’s disciplinary process, his participation
therein, and his belief that [the Department] could forward information to another entity to prosecute
a drunk driving allegation.” Id.
Although those cases and the current one involve reports made to a supervisor, the
supreme court has specifically declined “to say that no internal report could ever merit protection
under the Act.” Okoli, 440 S.W.3d at 616. In fact, the supreme court has provided examples of
when an internal report would warrant protection. See Gentilello, 398 S.W.3d at 686. Specifically,
the supreme court has explained that “[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. Similarly,
the supreme court has related that the Act’s requirements will be satisfied by a report “made to (1) an
individual person who possesses the law-enforcement powers specified under the Act, or (2) someone
who, like a police-intake clerk, works for a governmental arm specifically charged with exercising
such powers.” Okoli, 440 S.W.3d at 617. Stated differently, the supreme court has explained that the
employee to whom a report is made must work for an entity with “outward-looking law-enforcement
authority.” Id.
Moreover, after those cases were decided, the supreme court considered a situation
more similar to the allegations presented here. See McMillen v. Texas Health & Human Servs.
Comm’n, 485 S.W.3d 427 (Tex. 2016). In that case, McMillen “served as Deputy Counsel for the
[Texas Health and Human Services] Commission’s Office of the Inspector General (OIG)”; prepared
a memorandum regarding “the legality of the Commission’s practice of obtaining payments from
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certain recipients of Medicaid benefits”; gave the memorandum to Karen Nelson, who was “a
Deputy Inspector General for the Commission”; and made another report regarding the practice to
“the head of the OIG Internal Affairs Division” and “the Commission’s Executive Commissioner.”
Id. at 428. Several months later, McMillen was fired. Id. Ultimately, the supreme court determined
that McMillen made a report to an appropriate law-enforcement authority because the Commission,
through the OIG, was responsible for the investigation of fraud pertaining to health and human
services and for the enforcement of laws relating to the provision of those types of services and
because the Commission’s executive commissioner is charged with ensuring that Medicaid complies
with the laws that McMillen asserts were being violated. Id. at 430 (discussing Tex. Gov’t Code
§ 531.102(a)). Further, the court explained that “the OIG . . . has outward-looking powers” and “has
authority regarding those who handle funds contrary to the laws the OIG is charged with enforcing,
whether or not the violators are within the Commission.” Id.
The allegations at issue in this case seem to fall under the type of report to a
supervisor that the supreme court has stated will be entitled to protection under the Act. Specifically,
Montie has alleged that she made the report to Mollaghan, that Mollaghan was the director for the
animal shelter, and that Mollaghan was the supervisor for animal-control officers who investigate
violations of and enforce the animal-cruelty laws that Montie contends were violated. Although
Bastrop County asserts that Montie’s own allegations establish that Mollaghan would have had to
pass the complaint to one of her subordinate animal-control officers for investigative purposes and
for possible citations, the hypothetical examples presented by the supreme court indicate that a report
to an employee who does not have law-enforcement powers but works for an entity with outward-
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looking enforcement powers can qualify for protection. Similarly, the language of the governing
statutes does not appear to require that the individual to whom a report is made actually have the
authority to investigate or enforce the violations at issue; on the contrary, section 554.002 provides
that “a report is made to an appropriate law enforcement authority if the authority is a part of a state
or local governmental entity . . . that the employee in good faith believes is authorized to” “regulate
under or enforce the law alleged to be violated in the report” or “investigate or prosecute a violation
of criminal law.” Tex. Gov’t Code § 554.002(b). Moreover, this case does not present the type of
reporting that the supreme court has explained will not qualify for protection in which a report is
made to an employee of an entity that has no ability to investigate or enforce the alleged criminal
misconduct because Montie has alleged that the shelter has investigatory and enforcement powers
over animal-cruelty violations and that Mollaghan has supervisory control over the individuals to
whom the claim would be transferred to for investigation and enforcement. Further, unlike the
circumstances in Okoli, Lueck, and Needham, there is nothing indicating that Montie had been
informed before making the report that if an employee reports a criminal violation, that report will
be sent to another governmental agency or division for investigative and enforcement purposes or
that Montie made some type of admission that she was aware that Mollaghan was not the appropriate
authority to report the claim to.
Our conclusion that Montie has alleged a report to a supervisor that might ultimately
be deemed entitled to protection is further buttressed by a recent decision by one of our sister
courts of appeals. See Levingston, 221 S.W.3d 204. In that case, Dr. Sam Levingston worked as the
“senior veterinarian [for the] Bureau of Animal Regulation and Care (‘BARC’), a division of the
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City’s Department of Health and Human Services” that had law-enforcement powers over issues
concerning animals in the City. Id. at 210. After observing “‘a number of things,’” including animals
not being properly fed or provided with water, “occurring at BARC’s facility that ‘rose to the level
of animal abuse,’” Levingston reported the “matters to the attention of John Nix, the Division
Manager of BARC,” and later explained that he made the report to Nix because BARC is the
authority to which reports of the inhumane treatment of animals should be made. Id. at 210-11.
Following his making a report, Levingston was fired. Id. at 212. On appeal, the appellate court
observed that most of the allegations made by Levingston “constituted violations of criminal law,”
including the Penal Code, the Health and Safety Code, and the City of Houston Code, and concluded
that there was “legally sufficient evidence to support the jury’s implied findings that Levingston, in
good faith, believed that the conduct that he reported to Nix was a violation of criminal law and also
implicated the regulatory and enforcement function of BARC and that his belief was reasonable in
light of his training and experience.” Id. at 221-22. Further, the court concluded that BARC had
the authority to investigate or enforce violations of section 42.09 of the Penal Code, of relevant
provisions of the City of Houston Code, and of provisions of the Health and Safety Code pertaining
to the impoundment of animals by governmental entities, that “Nix’s supervisory position over all
of BARC” put him “in the best position to receive such reports on behalf of BARC,” and that the
evidence was “legally sufficient to support the jury’s implied findings that Levingston, in good faith,
believed that BARC was an appropriate law enforcement authority to which to report the above
pertinent violations of the City Code, the Texas Penal Code, and the Health and Safety Code and that
his belief was reasonable in light of his training and experience.” Id. at 224-25.
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In its next set of arguments, Bastrop County asserts that Mollaghan was not an
appropriate law-enforcement authority and that Montie could not have had a good-faith belief that
Mollaghan was an appropriate authority because Mollaghan was the person who committed the
alleged misconduct at issue. In other words, Bastrop County urges that a person who commits
misconduct could never be the “appropriate” person to report that misconduct to.
At first blush, Bastrop County’s assertions have some common-sense appeal in that
they question the likelihood that reporting misconduct to the person committing it will result in an
investigation or in the enforcement of the laws prohibiting the behavior. See Webster’s Third New
Int’l Dictionary 106 (2002) (defining “appropriate” as “specifically suitable: FIT, PROPER”).
However, we have been unable to find anything in the language of the governing statutes or the case
law interpreting those statutes that supports Bastrop County’s construction of the term “appropriate
law-enforcement authority.” On the contrary, the statutes provide and recent supreme court cases
explain that a determination on the appropriateness of an authority is made by considering whether
the authority has the ability to regulate or enforce the law at issue or to investigate or prosecute
criminal violations. See Tex. Gov’t Code § 554.002(b); Okoli, 440 S.W.3d at 615; Lueck, 290 S.W.3d
at 885; Needham, 82 S.W.3d at 320; see also Hunt Cty. Cmty. Supervision & Corr. Dep’t v. Gaston,
451 S.W.3d 410, 421 (Tex. App.—Austin 2014, pet. denied) (explaining that definition for appropriate
law-enforcement authority “focuses on: (1) the claimant's ‘good faith’ belief regarding (2) the attributes
of the governmental entity that the reported-to ‘authority’ is ‘part of,’ as opposed to ‘the specific
individual to whom the report is made’” (quoting Robertson Cty. v. Wymola, 17 S.W.3d 334, 340 (Tex.
App.—Austin 2000, pet. denied))); Travis Cty. v. Colunga, 753 S.W.2d 716, 721 (Tex. App.—Austin
1988, writ denied) (on reh’g) (stating that former version of Act did “not require that the violation
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of law be reported to ‘the most appropriate’ law enforcement authority” and instead only required
report to appropriate law-enforcement authority). Moreover, the fact that a report regarding alleged
wrongdoing is made directly to the person who allegedly committed the wrongdoing is not
inconsistent with the Act’s purpose of compelling compliance with the law by governmental actors
and might, in some instances, more quickly result in the cessation of the conduct than would a report
to a separate entity. See Barth, 178 S.W.3d at 162.
Finally, Bastrop County contends that the affidavit by Littleton, which was attached
to Bastrop County’s plea and which was discussed above, conclusively established that Mollaghan
was not an appropriate law-enforcement authority and that Montie could not have had a good-faith
belief that Mollaghan was an appropriate law-enforcement authority because Littleton explained
that allegations of animal cruelty are investigated by an entity other than the shelter and that
Mollaghan does not personally have the authority to investigate or enforce the violations at issue.
Previously, we explained that the governing statutes and case law do not state that the
individual to whom a report is made must personally have the authority to investigate or enforce the
violations allegedly committed. See Tex. Gov’t Code § 554.002(b); Okoli, 440 S.W.3d at 617.
Accordingly, in light of Montie’s allegations that the shelter has the authority to investigate and
enforce the laws at issue, it is not entirely clear that Littleton’s testimony establishing that Mollaghan
did not have investigative or enforcement powers herself could, on its own, conclusively establish
that Mollaghan was not an appropriate law-enforcement authority with whom a report could
be made. Cf. Okoli, 440 S.W.3d at 617 (discussing how individual might be appropriate law-
enforcement authority even without law-enforcement powers if person works for agency with those
types of powers).
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In addition, we note that in response to Bastrop County’s plea to the jurisdiction,
Montie pointed to various depositions, including her own, that were attached to Bastrop County’s
plea to the jurisdiction and asserts that those depositions contradict Littleton’s. First, Montie refers
to the depositions from two members of the Commissioners’ Court. Although neither of the County
Commissioners stated that the director could herself issue citations, investigate alleged criminal
activities, or enforce any laws, they did explain that the director of the shelter manages animal-
control officers and that those officers have the authority to issue citations for animal abuse or
neglect.3 Next, Montie refers to the deposition from Collins, who explained that although she did
not know if animal-control officers have the authority to issue citations or arrest people, their jobs
are investigatory in nature. Further, Collins related that the shelter used to be part of the Sheriff’s
Department for Bastrop County before being transferred from the Department and becoming “a
general county department.”4
Finally, Montie points to her own deposition in which she stated that she reported her
concerns to Mollaghan because Mollaghan “was in charge of animal control, she would be the one
to report animal cruelty.” Moreover, Montie explained that at the time that she was hired, the animal
3
During his deposition, County Judge Paul Pape explained that he believed that an
appropriate law-enforcement authority in this case would have been a police officer, the sheriff, or
the district attorney and further stated that he did not think the director of the animal shelter
qualified. However, when making his statements regarding the director, Judge Pape explained that
his statements were based on the assumption that it would not “be an effective thing to file that
complaint with that person against whom you were complaining” as opposed to a factual basis for
concluding that Mollaghan did not suffice as an “appropriate law enforcement authority.”
4
Prior to the first appeal, Montie urged that she also reported the criminal behavior to
Collins. In her briefs during the first appeal and in this appeal, Montie does not argue that a human-
resources coordinator like Collins could qualify as a law-enforcement authority.
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shelter was part of the Sheriff’s Department but admitted that the shelter had been reorganized and
transferred away from the control of the Sheriff’s Department. Furthermore, as support for the idea
that Mollaghan had law-enforcement authority, Montie notes her own testimony regarding her
responsibilities at various animal-related jobs. In particular, Montie explained that although she did
not issue a citation while working as a manager for the shelter and did not know if issuing citations
was part of her job responsibilities as a manager, she related that she had issued citations for animal
cruelty in the past while working as an animal-control officer and that during her employment as a
manager, she supervised individuals who had the authority to issue citations for animal cruelty.
In light of the preceding, we must conclude that Montie’s petition affirmatively
pleaded facts asserting that Mollaghan was an appropriate law-enforcement authority or that Montie
had a good-faith belief that Mollaghan was and that the evidence relied on by Bastrop County and
Montie demonstrates that there are fact questions regarding whether Mollaghan was in fact an
appropriate law-enforcement authority and whether Montie had a good-faith belief that Mollaghan
was an appropriate law-enforcement authority.
Adverse Personnel Action
Regarding the final element of a Whistleblower claim, Montie alleged in her petition
that she was fired within two months of reporting the violations to Mollaghan and that her
termination was the result of her making the report regarding Mollaghan’s misconduct. Given the
timing of her termination, Montie urged that she was entitled to a statutory presumption contained
in section 554.004 of the Government Code, which provides that if an employee is terminated less
than 90 days after a report is made, the termination “is presumed, subject to rebuttal, to be because
26
the employee made the report.” Tex. Gov’t Code § 554.004(a). Alternatively, Montie urged that
she provided evidence contradicting Bastrop County’s assertion that she was let go from her position
in order to create two lower-paying jobs. Specifically, she referred to attachments to her response
to Bastrop County’s plea to the jurisdiction showing that her salary as a manager was the same as
the salary for one of the new positions.
In its plea, Bastrop County did not dispute the alleged timing between when Montie
made a report to Mollaghan and when Montie was fired and did not assert that Montie was not
entitled to the statutory presumption that her termination was the result of her making the report.
However, Bastrop County did assert in its plea that the district court did not have jurisdiction over
the case because Montie “did not suffer retaliation as a result of making a qualified report.” As
support for this, Bastrop County pointed to the deposition from Collins in which she detailed the
complaints that Montie made about Mollaghan, explained that Montie was hired in August 2012 and
fired in December 2012, and related that as a new hire, Montie was a “probationary” employee.
Further, in her deposition, Collins also explained that Montie’s employment position was eliminated
when Mollaghan elected to remove the manager position and split that money between the following
two new positions: an administrative assistant and a shelter coordinator.
In light of the preceding, including the statutory presumption, we must conclude
that Montie’s petition affirmatively pleaded facts asserting that she was fired from her manager
position at the shelter as a result of filing a report with Mollaghan concerning Mollaghan’s alleged
misconduct and that the evidence relied on by Bastrop County and Montie demonstrates that there
are fact questions regarding whether Montie was terminated as a consequence of filing the report.
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For the reasons previously given, we sustain Montie’s first and third issues on appeal.
CONCLUSION
Having sustained Montie’s first and third issues, we reverse the district court’s order
granting Bastrop County’s plea to the jurisdiction and remand the case for further proceedings
consistent with this opinion.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
Reversed and Remanded
Filed: October 19, 2016
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