Chapter § 7-2 § 554.002. Retaliation Prohibited for Reporting Violation of Law

• Jurisdiction: United States

7-2 § 554.002. Retaliation Prohibited for Reporting Violation of Law

(a) 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.

(b) In this section, 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 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.

7-2:1 Commentary

The proposed procedural mechanism to seek dismissal is a plea to the jurisdiction.

• State v. Lueck, 290 S.W.3d 876 (Tex. 2009) (governmental immunity is waived for violations of the Act, so the elements of Section 554.002 can be considered in determining both jurisdiction and liability; thus, a plea to the jurisdiction is an appropriate means to seek dismissal of a suit).
• City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010) (in determining whether to grant the plea, court must look at the pleadings as well as any evidence presented by the parties; plaintiff's pleadings cannot stand on mere reference to the Whistleblower Act and/or bare allegations without jurisdictional facts sufficient to establish the elements of Section 554.002).
• Texas Health and Human Services Commission v. Carrizal, No. 03-18-00605-CV, 2019 WL 4265085 (Tex. App.—Austin 2019) (appeals court reverses denial of plea to the jurisdiction and renders judgment for employer; court notes that there was no adverse employment action inasmuch as plaintiff received promotions and raises after filing complaint; moreover, court holds that seventeen-month period between original complaint and termination negates but-for causation; court also notes that temporal proximity is measure from original complaint and not resubmission of the same).

In 2020, the Texas Supreme Court decided an important whistleblower case on whether the ninety-day period in which to file suit is jurisdictional and thus the failure to do so results in the trial court lacking jurisdiction.

• City of Madisonville v. Sims, 894 F.3d 632 (Tex. 2020) (terminated employee filed suit two years after termination; he claimed he did not know of his employer's violation until certain facts were revealed in his grievance hearings; relying upon the text of the statute the court rejected the argument and held ninety days was the absolute deadline).

And while it should be self-evident, the Texas Supreme Court has had to step in and declare the following as a rule of law.

• Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653 (Tex. 2013) (in whis-tleblower claim, plaintiff failed to show that his report to law enforcement caused the adverse employment action because the action occurred before the report to law enforcement).

An employer will sometimes argue that the statute requires the plaintiff to prove that the reported conduct in fact violated the law, but this argument has been rejected. Rather, the law permits a plaintiff to sue for retaliation if the plaintiff reported a violation of the law in good faith.

• El Paso Healthcare Sys. v. Murphy, 518 S.W.3d 412

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