Chris Hennsley v. Greg Stevens, Chief of Police, Lubbock Police Department, and City of Lubbock ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00346-CV
CHRIS HENNSLEY, APPELLANT
V.
GREG STEVENS, CHIEF OF POLICE, LUBBOCK POLICE DEPARTMENT,
AND CITY OF LUBBOCK, APPELLEES
On Appeal from the 72nd District Court
Lubbock County, Texas,
Trial Court No. 2017-526,477, Honorable Ruben Gonzales Reyes, Presiding
October 7, 2020
OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant Chris Hennsley is a former police officer with appellee, the City of
Lubbock Texas. Hennsley sued the City under the Texas Whistleblower Act, alleging that
the City discriminated against him for reporting illegal activity.1 The City filed a motion to
dismiss for want of jurisdiction, arguing Hennsley’s petition failed to state facts bringing
the case within the Whistleblower Act’s waiver of governmental immunity and that the trial
1 The Texas Whistleblower Act is contained in chapter 554 of the Texas Government Code. See
TEX. GOV’T CODE ANN. §§ 554.001-.010 (West 2012).
court, therefore, lacked subject-matter jurisdiction. Because no parties submitted
evidence, the district court limited its review of the City’s jurisdictional challenge to the
sufficiency of the allegations in Hennsley’s petition. Finding the pleading deficient, the
district court conditionally sustained the City’s jurisdictional challenge, but afforded
Hennsley an opportunity to file an amended petition “to address” the City’s motion.
After Hennsley filed a third amended petition and the City reurged its motion to
dismiss, the court dismissed Hennsley’s case for want of subject-matter jurisdiction.
Because we hold that one of the allegations in Hennsley’s live petition was sufficient to
invoke the subject-matter jurisdiction of the district court, we reverse the judgment
dismissing Hennsley’s claims and remand the case for further proceedings regarding that
theory of recovery only. In all other regards, we hold that the district court correctly
determined that Hennsley’s pleadings did not state valid claims under the Whistleblower
Act, and thus would not satisfy the requisites for a waiver of immunity.
Background
According to his live petition, in December 2015, Hennsley became aware of
allegations that the City’s then chief of police, Greg Stevens, had engaged in sexual
misconduct in violation of City policies. Hennsley concedes Stevens’s unspecified acts
of alleged sexual misconduct were not a violation of law. Nevertheless, Hennsley notified
the City’s mayor anyway.
Word of Hennsley’s report is said to have come to Stevens’s attention, who
ordered Hennsley to appear before him. Hennsley claims that during the meeting,
Stevens accused Hennsley of “spreading lies and rumors all over town” and attempting
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to “blackmail” and “extort” Stevens into altering the outcome of a pending grievance
proceeding. Stevens is alleged to have threatened to fire Hennsley and to have
demanded that Hennsley turn over any evidence of sexual misconduct.
Hennsley alleges that Stevens used his office of chief of police to threaten
Hennsley and to quash a legitimate investigation of misconduct. According to Hennsley,
Stevens’s conduct at the meeting violated Texas Penal Code sections 36.05 (Tampering
with Witness);2 36.06 (Obstruction or Retaliation);3 and 39.01 and 39.02 (Abuse of Official
Capacity).4
Hennsley also claims that in October 2016, Stevens contacted several Lubbock
police officers who were scheduled to appear in a criminal trial as witnesses on behalf of
a defendant police officer. Hennsley’s petition alleges that Stevens made threatening
statements to intimidate these potential witnesses and prevent them from testifying. He
alleges such conduct violates Texas Penal Code section 36.05 (Tampering with Witness).
In March 2017, Hennsley was involved in a motor vehicle chase that resulted in
apprehension of a criminal suspect. On March 31, Hennsley was placed on
administrative leave and was not allowed to return to his regular work as a police officer.
Stevens is alleged to have ordered Hennsley investigated by the internal affairs division
for violating the department’s pursuit policy. Hennsley alleges these and other actions
2 TEX. PENAL CODE ANN. § 36.05 (West 2017).
3 TEX. PENAL CODE ANN. § 36.06 (West 2017).
4 TEX. PENAL CODE ANN. §§ 39.01 & 39.02 (West 2017).
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were taken by the City to create “a trail of contrived evidence” for purposes of terminating
him.
Hennsley filed his Whistleblower Act lawsuit against the City on July 24, 2017. In
August, Hennsley made reports of alleged witness tampering regarding the criminal
proceeding to the Lubbock county sheriff, district attorney, Texas Rangers, and others.
On September 21, 2017, Hennsley was placed on “Indefinite Suspension Without Pay,”
which he characterizes to be termination from employment.
Standard
Generally, the plaintiff in a civil suit assumes the burden of affirmatively
demonstrating that the trial court possesses subject-matter jurisdiction of the cause
alleged. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). An absence of
subject-matter jurisdiction may be raised through a plea to the jurisdiction. Ortiz v. Plano
Indep. Sch. Dist., No. 02-13-00160-CV, 2014 Tex. App. LEXIS 7, at *2 (Tex. App.—Fort
Worth Jan. 2, 2014, pet. denied).
A. The Elements of Alleging a Whistleblower Act Claim
A trial court lacks subject-matter jurisdiction over a governmental unit that is
immune from suit unless the Texas Legislature has expressly waived immunity. State v.
Lueck, 290 S.W.3d 876, 880 (Tex. 2009). One example of an express legislative waiver
of governmental immunity is found in the Whistleblower Act, providing that immunity is
waived and abolished “to the extent of liability for the relief allowed” under the Act. TEX.
GOV’T CODE ANN. § 554.0035; Lueck, 290 S.W.3d at 883 (holding that the elements for
establishing jurisdiction are co-extensive with those for proving liability). Because a
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waiver of immunity depends, in part, upon whether Hennsley sufficiently alleges a viable
claim under the Whistleblower Act, it is necessary to look to the language in the Act for
guidance:
A state or local governmental entity may not suspend or terminate the
employment of, or take other 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.
TEX. GOV’T CODE ANN. § 554.002(a). In other words, under the Whistleblower Act, a
plaintiff is required to prove: (1) that the plaintiff was a public employee, (2) that the plaintiff
reported a violation of law in good faith, (3) that the violation of law reported was
committed by the plaintiff’s employing governmental entity or another public employee,
(4) that the report was made to an appropriate law enforcement authority, and (5) that the
plaintiff’s employing governmental entity took an adverse personnel action against the
plaintiff because of the report. Reding v. Lubbock Cty. Hosp. Dist., No. 07-18-00313-CV,
2020 Tex. App. LEXIS 2312, at *3 (Tex. App.—Amarillo Mar. 18, 2020, no pet.) (mem.
op.).
B. The Prerequisites for Suing on a Whistleblower Act Claim
In addition to sufficiently pleading a claim under the Whistleblower Act, Hennsley
must also allege he has satisfied certain conditions precedent before suing the City. Via
section 311.034 of the Code Construction Act, the Texas Legislature has declared that
these prerequisites are jurisdictional. TEX. GOV’T CODE ANN. § 311.034 (West 2013); City
of Madisonville v. Sims, No. 18-1047, 2020 Tex. LEXIS 322 at *5 (April 17, 2020) (per
curiam); Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 515 (Tex. 2012). The
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Whistleblower Act contains two prerequisites to a plaintiff suing: (1) the plaintiff must
initiate the employer’s available grievance or appeal procedures not later than ninety days
after the alleged violation occurred or was discovered through reasonable diligence; and
(2) the plaintiff must timely sue within the timelines articulated in the statute. TEX. GOV’T
CODE ANN. § 554.006.
C. Standards for Assessing the Sufficiency of the Pleadings
When, as here, jurisdiction depends exclusively on the allegations in the plaintiff’s
petition, we apply a de novo standard of review. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). We look to whether the plaintiff alleges facts that
affirmatively demonstrate the court’s jurisdiction. Id. When the pleadings do not
affirmatively demonstrate subject-matter jurisdiction, our Supreme Court guides
disposition of the matter:
If the pleadings do not contain sufficient facts to affirmatively demonstrate
the trial court’s jurisdiction but do not affirmatively demonstrate incurable
defects in jurisdiction, the issue is one of pleading sufficiency and the
plaintiffs should be afforded the opportunity to amend. If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiffs an opportunity to
amend.
Id. at 226-27 (citations omitted).
Pleading jurisdictional facts is not reviewed under a heightened pleading standard,
nor is a plaintiff required to reveal the evidence in support of its claims. Id. at 230. Instead,
our review looks to the plaintiff’s intent, construing the pleadings liberally in favor of
jurisdiction and accepting the non-conclusory statements in the pleadings as true. City
of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); Lueck, 290 S.W.3d at 884.
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Analysis
To determine whether Hennsley has sufficiently pleaded a violation of the
Whistleblower Act, we assess each allegation in light of the elements articulated in section
554.002(a) and the proper standard of review.
1. Whether Hennsley Alleged He Was a Public Employee
Hennsley alleged he was a peace officer employed by the City’s police department
for over fifteen years. His rank was patrolman. For the purpose of Hennsley’s
Whistleblower Act claim, the City does not dispute his status as a public employee. We
hold that Hennsley has appropriately alleged he was a public employee during the
relevant period.
2. Whether Hennsley Alleged the City is a Unit of Local Government
There is no disagreement with the allegations in Hennsley’s petition that the City
of Lubbock is a unit of local government. This element is satisfied.
3. Whether Hennsley Alleged He Reported, In Good Faith, a Violation of Law
We next examine whether Hennsley sufficiently alleged he reported in good faith
a violation of law. The phrase “‘good faith’ means that (1) the employee believed that the
conduct reported was a violation of law and (2) the employee’s belief was reasonable in
light of the employee’s training and experience.” Wichita Cty. v. Hart, 917 S.W.2d 779,
784 (Tex. 1996). A police officer’s allegations of a violation of law may be more closely
scrutinized because the officer may have had greater experience determining whether
conduct violates the law than those of other backgrounds. Id. “Law” as used in the
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Whistleblower Act means a state or federal statute, an ordinance of a local governmental
entity, or “a rule adopted under a statute or ordinance.” TEX. GOV’T CODE ANN.
§ 554.001(1). Hennsley’s live pleadings identify two reports in which he alleged a
violation of law by Stevens.
(a) The First Report
With regard to allegations that Stevens violated city policy by engaging in sexual
misconduct, Hennsley, a veteran police officer, concedes that such acts are not a violation
of law. Rather, Hennsley claims that Stevens’s acts in response to learning of Hennsley’s
allegation constitute a “use of his office as Chief of Police to threaten [Hennsley] and
quash an investigation,” in violation of the following portions of the Texas Penal Code:
Sections 36.05 (Tampering with Witness); 36.06 (Obstruction or Retaliation); and 39.01
and 39.02 (Abuse of Official Capacity).
Hennsley supports his first example of whistleblowing liability with the following
pleaded facts: Stevens, after learning of Hennsley’s report of sexual misconduct, ordered
Hennsley to appear at department headquarters. Hennsley was allegedly ordered to
leave his cell phone with the internal affairs division to ensure there was no recording of
the conversation. Stevens demanded that Hennsley turn over all evidence regarding
alleged sexual misconduct and threatened that Hennsley could be fired. Hennsley also
alleges in conclusory form that Stevens made threats “in an attempt to destroy evidence
and stifle any investigation into his misconduct.” We describe below why Stevens’s
alleged actions, even if proven to be true, do not allege violations of law.
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1) Tampering with Witness (Texas Penal Code section 36.05). We hold that
Stevens’s alleged “use of his office as Chief of Police to threaten [Hennsley] and quash
an investigation” does not constitute a violation of the witness tampering provision of
section 36.05 under the specific circumstances of this case. That section specifically
pertains to instances in which an actor seeks to influence a witness or potential witness
in an official proceeding. Id. However, Hennsley never alleges that anyone was a witness
or potential witness in any official proceeding pertaining to sexual misconduct; there was
only an alleged investigation of whether a City policy had been violated. Moreover,
Hennsley never alleges any fact that Stevens coerced anyone to testify falsely; to withhold
testimony, information, documents, or things; to elude a summons to testify; or to absent
themselves from proceeding to which they have been summoned.
2) Obstruction or Retaliation (Texas Penal Code section 36.06). We likewise hold
that Hennsley failed to allege a violation of section 36.06. Elemental to prosecution under
this section is the requirement that an actor “intentionally or knowingly harm[] or threaten[]
to harm another by an unlawful act.” Id. at § 36.06(a) (emphasis supplied). Hennsley
does not identify an independent unlawful act threatened by Stevens. See Meyer v. State,
366 S.W.3d 728, 732 (Tex. App.—Texarkana 2012, no pet.) (threat of harm held not to
constitute violation of section 36.06 in absence of threat to perform unlawful act.).
3) Abuse of Office/Official Capacity (Texas Penal Code sections 39.01, 39.02).
Finally, Stevens’s alleged actions do not rise to the crime of abuse of office or abuse of
official capacity. Hennsley does not identify any violation of law related to Stevens’s office
or employment, as required by section 39.02 (a)(1). Nor does Hennsley identify any
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government property, services, personnel, or other thing of value that was allegedly
misused by Stevens, fundamental to section 39.02 (a)(2).
Hennsley failed to allege a violation of law stemming from his sexual misconduct
reports. Moreover, we hold that a law enforcement officer with more than fifteen years of
training and experience would know, or should know, that the matters alleged here do not
constitute violations of law. We accordingly hold that Hennsley did not make a good faith
allegation that Stevens had violated the law regarding investigation into alleged sexual
misconduct. See Harris Cty. v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996). The
allegations regarding Stevens’s sexual misconduct do not meet the standards for waiving
governmental immunity.
Because Hennsley’s first reported violation of law (as well as “additional acts of
retaliation” related to such acts) fails to allege facts that, if true, would constitute a waiver
of governmental immunity, we hold that the district court correctly found that such portion
of Hennsley’s pleadings did not bring Hennsley within the Whistleblower Act’s waiver of
immunity. It is unnecessary to permit Hennsley the opportunity to amend his pleadings
for this theory of report as his pleadings contain incurable defects.
(b) The Second Report
Hennsley also alleges that in October 2016, Stevens allegedly met with “several”
department police officers wherein he communicated “statements that the witnesses
believe were attempts to intimidate them and to prevent them from testifying” on behalf
of a defendant at an upcoming criminal trial. As discussed above, Texas Penal Code
section 36.05 proscribes an actor, with intent to influence, from coercing a witness or
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prospective witness to, inter alia, testify falsely, withhold information, or withhold
documents in an official proceeding. In light of the liberal pleading standard and the
inferences drawn in favor of the plaintiff at this stage, we hold that Hennsley has
sufficiently alleged a violation of law for witness tampering regarding the criminal trial.5
4. Whether Hennsley Reported to an Appropriate Law Enforcement Authority
Hennsley claims that in August 2017—ten months after Stevens allegedly
intimidated witnesses to prevent their trial testimony—Hennsley reported the conduct to
various law enforcement officials, including the Lubbock County Sheriff, Lubbock County
District Attorney, a deputy sheriff, and two Texas Rangers. Section 552.002(b) articulates
that an appropriate law enforcement authority includes portions of state or local
government that the employee believes in good faith to be authorized to investigate and
prosecute violations of criminal law. We Court holds that Hennsley satisfied this pleading
element when he identified the numerous law enforcement officials to whom he reported
Stevens’s alleged witness tampering.
5. Whether Hennsley Alleged That His Report Was the But-For Cause of The Suspension
or Firing
Texas law does not require Hennsley to show that his report was the “sole” or the
“substantial” reason for why he was terminated, only that the adverse action “would not
have occurred when it did” if the report had not been made. Office of Attorney Gen. v.
Rodriguez, 605 S.W.3d 183 (Tex. 2020) (citing Tex. Dep’t of Human Servs. v. Hinds, 904
5 Today’s assessment of Hennsley’s pleadings does not dispense with his obligation to produce
sufficient evidence supporting such allegations. See Montgomery Cty. v. Park, 246 S.W.3d 610, 612 (Tex.
2007) (dismissing plaintiff’s suit when evidence was deficient to support elements of Whistleblower Act.).
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S.W.2d 629, 633 (Tex. 1995)); TEX. GOV’T CODE ANN. § 554.002(a). Nevertheless,
proving but-for causation necessarily requires that the report precede the alleged
retaliatory act. Univ. of Houston v. Barth, 403 S.W.3d 851, 857 (Tex. 2013) (per curiam)
(holding that employment actions taken before report was made could not support
causation under Whistleblower Act); Bates v. Pecos Cty., 546 S.W.3d 277, 288 (Tex.
App.—El Paso 2017, no pet.) (same).
The Court finds a single allegation of an employment decision that occurred after
Hennsley reported Stevens’s alleged trial witness tampering. Specifically, Hennsley was
placed on indefinite suspension without pay (i.e., terminated) on September 21, 2017 “in
retaliation for [Hennsley’s] reporting possible violations of the law to appropriate law
enforcement officials.” If the suspension, termination, or an adverse personnel action
occurs within ninety days after an employee makes a report to a law enforcement
authority, there exists a rebuttable presumption that the personnel action was imposed
because of the employee’s report. TEX. GOV’T CODE ANN. § 554.004(a). We hold that at
this stage in the proceedings, Hennsley’s pleading that he was fired for filing his second
report satisfies the requirement that he allege but-for causation.
6. Whether Hennsley Timely Invoked the Grievance/Appeals Process and Timely Sued
Holding that Hennsley made a single allegation that, if true, would constitute a
waiver of immunity, we next look at section 554.006’s requirement that Hennsley comply
with the prerequisites to suit. As a part of its argument that Hennsley did not comply with
the “pre-suit” requirements of the Act, the City emphasized that Hennsley failed to
demonstrate he timely “filed suit.” But the initiation of litigation with the filing of a lawsuit
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is not the proper event to examine. Texas Government Code section 554.006(a) instead
provides:
A public employee must initiate action under the grievance or appeal
procedures of the employing state or local governmental entity relating to
suspension or termination of employment or adverse personnel action
before suing under this chapter.
TEX. GOV’T CODE ANN. § 554.006(a) (emphasis added). The employee must initiate the
grievance/appeal process no later than ninety days after (1) the alleged violation
occurred, or (2) the violation was discovered by the employee through reasonable
diligence. TEX. GOV’T CODE ANN. § 554.006(b). Sections 554.005 and 554.006(c),(d) set
out the timeframe within which the employee “must sue” the governmental entity; they
depend on the timing of when the grievance/appeal process was initiated.
In cases when an employee alleges a single adverse employment decision,
distinguishing between when a plaintiff “fil[es] suit” or sues is meaningless for purposes
of section 554.006. However, in this case, Hennsley had already filed suit to seek redress
for retaliation allegedly stemming from his first report when he was indefinitely suspended
from employment, allegedly for filing a second report. It would have been impossible for
Hennsley to initiate a pre-lawsuit grievance for a suspension that had not yet occurred.
We hold that section 554.006(a)’s requirement for Hennsley to initiate his
grievance/appeals process “before suing under this chapter” does not preclude Hennsley
from amending his pleadings to sue for a new violation of the Whistleblower Act so long
as he properly complies with sections 554.005 and 554.006 before asserting the new
claim. When a plaintiff alleges multiple reports in support of his whistleblower claim, each
report must be evaluated for compliance with Texas law. See Hernandez v. Dallas Indep.
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Sch. Dist., 05-17-00227-CV, 2018 Tex. App. LEXIS 2722, at *6 (Tex. App.—Dallas Apr.
18, 2018, no pet.) (mem. op.) (examining multiple reports to determine compliance with
jurisdictional requirements) (citing Gonzalez, 325 S.W.3d at 626).
While we hold that Hennsley was not barred from amending pleadings to allege he
was terminated from employment during the pending suit, we are unable to determine
whether Hennsley complied sections 554.005 or 554.006 before he amended his petition
on October 17, 2017. In that amended pleading, Hennsley alleged he filed grievances
regarding “these actions,” but the timeline remains vague. Accordingly, we hold that
Hennsley’s pleadings currently lack sufficient information to affirmatively demonstrate the
trial court’s jurisdiction over employment termination allegedly in retaliation for Hennsley’s
second report; his pleadings do not incurably demonstrate an absence of jurisdiction,
either. Per application of Miranda, Hennsley should have an opportunity to amend to
plead facts that state (1) when he initiated the grievance/appeals process, if any, for the
indefinite suspension;6 and (2) when said grievance process was completed, if ever.7 133
S.W.3d at 226-27. If Hennsley is unable to affirmatively show that he complied with the
procedural requisites before he filed his amended pleading on October 17, 2017, the
district court should dismiss Hennsley’s employment termination claim for want of subject-
matter jurisdiction. Of course, the district court may consider evidence and must do so if
it is necessary to resolve the jurisdictional issue. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 555 (Tex. 2000).
6 See TEX. GOV’T CODE ANN. § 554.006(a),(b).
7 See TEX. GOV’T CODE ANN. §§ 554.005, 554.006(c),(d).
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Conclusion
With regard to Hennsley’s claim that he was terminated from employment for
reporting Chief Stevens’s alleged tampering with witnesses in the pending criminal trial,
we hold that Hennsley sufficiently alleges the first part of showing a waiver of immunity
under the Whistleblower Act. However, the current state of Hennsley’s pleadings do not
affirmatively show or negate his compliance with the prerequisites for suing. We therefore
vacate the judgment of dismissal and remand this matter solely for the district court to
determine whether Hennsley complied with sections 554.005 and 554.006 when
asserting this claim.
In all other regards and for all other theories alleging Whistleblower Act liability, we
hold that the district court correctly found that Hennsley’s allegations are insufficient to
overcome the bar of immunity. Further, we hold that such pleading defects are incurable
and decline to afford Hennsley the opportunity to amend.
Lawrence M. Doss
Justice
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