Texas Whistleblower Act

AuthorLaura M. Franze
 
A. Purpose and Scope
1. Goals of the Whistleblower Act
2. Scope of Coverage
B. Venue
C. Posting Requirement
A. Good Faith Report of Violation of Law
1. Report of Violation of Law
a. What Constitutes a “Report”?
b. Has a “Law” Been Violated?
2. By the Employing Governmental Entity or Another Public Employee
3. Good Faith
B. Appropriate Law Enforcement Agency
C. Adverse Action and Causation
A. Failure to Prove “But For” Causation
B. Statute of Limitations/Internal Grievance Procedures
C. Sovereign Immunity
A. Damages Available
B. Exemplary Damages Not Available
C. Civil Penalties
§34:1  
A. PS
Enacted in 1983, the Texas Whistleblower Act prohibits retaliation against public employees who report official
wrongdoing. . §§554.001-.010 (Vernon 2004 & Supp. 2011). The Texas Legislature has repeatedly
amended the Whistleblower Act, most recently in 1995. See Historical and Statutory Notes following §554.001.
The current version of the Act provides:
A state or local government 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.
. §554.002(a) (Vernon 2004 & Supp. 2011).
1. Goals of the Whistleblower Act
The Whistleblower Act is remedial in nature and should be liberally construed. See Davis v. Ector County, Tex., 40
F.3d 777 (5th Cir. 1994); Moreno v. Texas A&M Univ.-Kingsville, 339 S.W.3d 902, 907 (Tex. App.—Corpus Christi
2011, pet. filed); Town of Flower Mound v. Teague, 111 S.W.3d 742, 752 (Tex. App.—Fort Worth 2003, pet. denied).
To this end, the courts have identified four goals of the Act:
To protect state and local government employees from retaliation for reporting, in good faith, suspected violations
of law. See City of Houston v. Levingston, 221 S.W.3d 204, 218 (Tex. App.—Houston [1st Dist.] 2006, pet. granted);
Housing Auth. of the City of Crystal City v. Lopez
Whistleblower Act was designed to protect employees who urge public agencies to conduct their affairs honestly
and correct their mistakes.”).
To secure lawful conduct on the part of individuals who direct the affairs and conduct of public bodies. See City
of Houston, 221 S.W.3d at 218; Faulkner v. Dep’t of State Health Servs., No. 3:07-CV-2074-D, 2009 WL 722938,
at *2 (N.D. Tex. Mar. 19, 2009).
authorities of wrongdoing.” Moreno v. Texas A&M Univ.-Kingsville, 339 S.W.3d 902, 907 (Tex. App.—Corpus Christ
2011, pet. filed); Phelan v. Texas Tech. Univ., No. 07-07-0171-CV, 2008 WL 190741, at *3 (Tex. App.—Amarillo
2008, pet. denied); see also Roberts v. Titus County Mem. Hosp.
To encourage compliance through “informal processes—voluntary resolution, conference, conciliation and
persuasion—rather than litigation.” Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315 (Tex. App.—Houston
[14th Dist.] 2002, no pet.); City of Austin v. Ender, 30 S.W.3d 590, 594 (Tex. App.—Austin 2000, no pet.).
2. Scope of Coverage
The Texas Whistleblower Act protects only public employees. The Act defines a public employee as “an employee
or appointed officer other than an independent contractor who is paid to perform services for a state or local
governmental entity.” . §554.001(4) (Vernon 2004 & Supp. 2011); see City of Roman Forest
v. Stockman, 141 S.W.3d 805, 810 (Tex. App.—Beaumont 2004, no pet.) (appointed municipal judge not a public
employee who could bring claim under Act even though city controlled “hours he worked and the provision of his
supplies, his office, and support personnel”); Denton County v. Howard, 22 S.W.3d 113 (Tex. App.—Fort Worth
2000, no pet.) (liability under Whistleblower Act dependent on finding that county librarian was employee rather
than independent contractor), disapproved on other grounds by Texas Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217 (Tex. 2004); Permian Basin Community Ctrs. v. Johns, 951 S.W.2d 497, 500-01 (Tex. App.—El Paso
1997, no writ) (holding that, although employee was paid by a private company, employee was not an independent
contractor and the governmental entity was the employer under the Act because it had the right to supervise and
terminate the employee). The Act does not distinguish between probationary and non-probationary employees. See
City of Alamo v. Holton, 934 S.W.2d 833 (Tex. App.—Corpus Christi 1996, no writ). Nor does the Act preclude
at-will public employees from bringing suit. Knowlton v. Greenwood Indep. Sch. Dist., 957 F.2d 1172, 1181 (5th Cir.

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