Texas Whistleblower Act

• Author: Laura M. Franze
• Pages: 691-706

 

34-1

CHAPTER 34

TEXAS WHISTLEBLOWER ACT

BY LAURA M. FRANZE

34:1. OVERVIEW

A. Purpose and Scope

1. Goals of the Whistleblower Act

2. Scope of Coverage

B. Venue

C. Posting Requirement

34:2. ELEMENTS OF WHISTLEBLOWER ACTION

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

34:3. DEFENSES

A. Failure to Prove “But For” Causation

B. Statute of Limitations/Internal Grievance Procedures

C. Sovereign Immunity

34:4. DAMAGES AND LIABILITY

A. Damages Available

B. Exemplary Damages Not Available

C. Civil Penalties

§34:1  

34:1. OVERVIEW

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.