the University of Houston v. Stephen Barth

Opinion issued July 3, 2008

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00490-CV

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THE UNIVERSITY OF HOUSTON, Appellant

v.

STEPHEN BARTH, Appellee

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On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2001–34089  

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DISSENTING OPINION

          I respectfully dissent. I disagree with the majority opinion’s determination that the University waives its legal sufficiency challenge due to inadequate briefing. By addressing each of the arguments presented by the parties, I would hold that the evidence is legally insufficient to show that Stephen Barth, in good faith, reported a violation of the law to an appropriate law enforcement authority, as those terms are defined by the Texas Whistleblower Act (“the Act”). See Tex. Gov’t Code Ann. §§ 554.001–.010 (Vernon 2004). The people to whom Barth reported the conduct by Alan Stutts do not meet the definition of an appropriate law enforcement authority under the Act. Also, Barth, an attorney with experience in the requirements of the Act, cannot objectively show he had a good faith belief the people to whom he reported the conduct were appropriate law enforcement authorities. Further, Barth’s report to the police came after the alleged retaliatory acts and, therefore, Barth cannot, as a matter of law, show that the retaliatory acts were caused by the report to the police. I would therefore reverse and render judgment in favor of the University of Houston (“the University”).

Waiver of Appeal

          I respectfully disagree with the majority opinion’s determination that the challenge to the legal sufficiency of the evidence is waived due to inadequate briefing. According to the majority opinion, “the University makes no argument directed toward Barth’s claim that his whistleblower claim is based on his report of a violation of the law governing state contracts.” The majority opinion errs in finding waiver because it finds waiver (A) based on the University’s failure to present Barth’s theory for him; (B) based on the faulty premise that “the University makes no argument” about the law governing state contracts; (C) despite no complaint of inadequate briefing; and (D) despite the clear challenge to the elements of the claim. These reasons are detailed more specifically below.

          A. Waiver Based on Failure to Present Barth’s Theory for Him

          The majority opinion finds waiver based on the University’s failure to present Barth’s theory for him. It is apparent that the University did not present Barth’s theory for him because that theory is immaterial to the University’s no-evidence challenge. The University’s issue number one inquires, “Is there legally and factually sufficient evidence to support the jury’s finding that Barth’s report was causally linked to the alleged adverse actions taken against him?” The subpart of this issue asks, “Were the individuals to whom Barth reported the alleged policy and/or legal violations appropriate law enforcement officials under the Texas Whistleblower Act?” In its opening brief, the University states its theory as follows:

The report must have been made to an appropriate law enforcement official. Although Barth reported alleged violations of internal University policy to several University officials, his only report to an appropriate law enforcement official was his report to the University of Houston Police Department. The alleged adverse actions for which Barth sought judicial relief all occurred before his report to the UH Police Department. Accordingly, Barth failed to demonstrate that but for his report, the purported adverse employment actions would not have occurred when they did.

The University explains that Randy Harris, Don Guyton, and Dennis Duffy are not appropriate law enforcement officials under the Act because the only law to be enforced was the Penal Code, and the people to whom Barth reported could not enforce that law. With respect to Guyton’s audit team, the University contends,

Only when an audit uncovers evidence of suspected criminal activity does the audit team turn the case over to UH police and may cooperate with any police investigation. . . . None of the individuals to whom Barth made the reports were responsible for investigating or enforcing the law in question. . . . Instead, they were only charged with cooperating with the Police Department’s investigation.

          The elements of a claim under the Act that an employee must prove are that: (1) he is a public employee; (2) he acted in good faith in making his report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) he suffered retaliation as a result of making the report. State v. Lueck, 212 S.W.3d 630, 637 n.3 (Tex. App.—Austin 2006, pet. filed). In its legal sufficiency issues, the University plainly challenges the second element, which requires that the employee act in good faith in making the report; the fourth element, which requires that the report be made to an “appropriate law enforcement authority”; and the fifth element, which requires proof of causation, in that the employee must show that he suffered retaliation as a result of making the report.

          If the University’s arguments and authorities in the opening brief are correct— that the only law violated was the Penal Code, that the people to whom Barth reported were not appropriate law enforcement officials, that the report to the University police came too late, and that Barth did not have a good faith belief that the people to whom he reported were appropriate law enforcement officials—then the University must prevail in its challenge to the legal sufficiency of the evidence. This is because the University has shown that there is no evidence of the required elements that the report must be made to an appropriate law enforcement authority or to someone whom Barth believed, in good faith, to be an appropriate law enforcement authority, and that he suffered retaliation as a result of making the report. See id. Thus, the legal sufficiency challenge is adequate for the University to prove that there is no evidence of the required elements of the cause of action.  

          Barth attempts to respond to the University’s claims by briefly presenting an alternate argument concerning what the majority opinion calls “the law governing state contracts.” In its entirety, the sole argument by Barth concerning civil law is:

In addition, Guyton’s position as Internal Auditor is established under Chapter 2102 of the Texas Government Code. . . . Pursuant to Tex. Gov’t Code §§ 2102.007 and 2102.003, Guyton is authorized to conduct audits including an “investigation described by Section 321.0136.” Tex. Gov’t Code §321.0136 defines investigation as “an inquiry into specified acts or allegations of impropriety, malfeasance, or nonfeasance in the obligation, expenditure, receipt, or use of state funds, or into specified financial transactions or practices that may involve such impropriety, malfeasance, or nonfeasance.” Malfeasance is defined as “a wrongful or unlawful act; esp. wrongdoing or misconduct by a public official.” Black’s Law Dictionary 976 (8th Ed.). A reasonable interpretation of the scope of Guyton’s statutory duty is that he is authorized to investigate violations of criminal and civil law involving impropriety or malfeasance in the use of state funds.

          The Act 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 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.” Tex. Gov’t Code Ann. § 554.002(b); see Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 317–18 (Tex. 2002). A close examination of Barth’s argument reveals that Barth makes no claim concerning the first alternative. More specifically, Barth makes no argument that Guyton or Harris were authorized to “regulate under or enforce” either the rules that apply to the University system or civil regulations over state contracts. See Tex. Gov’t Code Ann. § 554.002(b). Barth’s argument focuses on the second alternative, which requires evidence that the person have been authorized to “investigate or prosecute a violation of criminal law.” See Needham, 82 S.W.3d at 317–18. By referring to Guyton’s authority to investigate civil and criminal law, Barth misinterprets the second alternative, which applies only to investigation or prosecution of a violation of criminal law. See id. The University’s entire opening brief repeatedly expresses its position that no person or entity, other than the University Police, could “investigate or prosecute a violation of criminal law.” See id. Because the only dispute concerns whether the people to whom Barth reported could investigate or prosecute a violation of criminal law, the University did not waive any argument concerning regulation or enforcement of a civil law.

          The University’s legal sufficiency challenge was sufficient to attack the elements of the claim, and Barth responded to that challenge with his theory of the evidence. Nothing in the Rules of Appellate Procedure requires that the appellant present the appellee’s arguments for the appellee. Thus, the majority opinion errs by finding waiver based on the University’s failure to present Barth’s theory for him.

          B. Waiver Based on Faulty Premise

           The majority opinion finds waiver based on the faulty premise that “the University makes no argument” about the laws governing state contracts. This claim is erroneous because the University does respond to Barth’s arguments.

          Although the majority opinion finds it fatal that the University purportedly did not make an argument about laws governing state contracts, it is important to note, as shown from the quoted excerpt above, that Barth does not make any specific argument about state contracts. Barth’s focus is on the investigation of violations of criminal and civil law involving impropriety or malfeasance in the use of state funds. Moreover, Barth misinterprets the second alternative by suggesting that an investigation into a violation of a civil rule or regulation would meet the requirements of the Act. See id. The Act plainly includes only the investigation or prosecution of criminal law. Id.

          Until Barth presents the alternate theory about civil law, there is no reason for the University to mention state contracting laws, because that matter is irrelevant under the University’s theory that only the law in the Penal Code applies to this factual situation. However, after Barth presents his theory in his appellee’s brief, the University’s reply brief responds to Barth’s position as follows:

Barth alternatively asserts that Harris, Guyton, and Duffy each in their own right are appropriate law enforcement authorities under the Act. As the Texas Supreme Court has emphasized, the particular law that the employee reported was violated is crucial to the determination of whether a report was made to an appropriate law enforcement official. . . . The law in question here is Penal Code § 37.10, which prohibits the knowing entry of false information in a government record. Barth ignores this part of the inquiry in his brief, instead focusing on the generalized authority of each individual to whom he made the reports.

(Emphasis added and citations omitted). The University, therefore, directly disputes Barth’s contention by arguing that nothing in Guyton’s “generalized authority” would make Guyton an appropriate law enforcement authority “in [his] own right.” The majority opinion therefore errs by finding waiver based on the faulty premise that Barth made an argument about laws governing state contracts and that the University did not respond to the argument presented by Barth.

          C. Waiver Despite No Complaint of Inadequate Briefing

          Although a party is not required to assert waiver for an appellate court to determine that a matter is waived, it is noteworthy that Barth never contends that the University’s brief is inadequate in any way or that we should find any issue waived. Barth understands the no-evidence challenge by responding with his claims concerning that challenge. The majority opinion’s sua sponte finding of waiver is not based on any complaint of inadequate briefing.

          D. Waiver Despite Clear Challenge to Elements of Claim   

          The majority opinion finds waiver even though the University could prevail on its legal sufficiency challenge if it established what it complained of in its opening brief. It is undisputed that the University’s brief (1) plainly asserts an issue challenging the legal sufficiency of the evidence concerning whether Barth’s reports were to an appropriate law enforcement authority prior to the alleged retaliatory acts; (2) includes citations to the record, legal authority, and analysis to support the issue; (3) clearly expresses the position that the people to whom Barth reported the purported violations were not the appropriate law enforcement officials under the Act because the only applicable law is the Penal Code and none of the officials to whom he reported could investigate violations of the Penal Code, even when considering the rules that apply to the University system; and (4) asserts Barth did not have a good faith belief that the people to whom he made the report were the appropriate ones under the Act. But this is not enough under the holding of the majority opinion. According to the majority opinion, the University must also have presented Barth’s alternate position about state contracting laws and then negated that theory by doing more than affirmatively explaining why it is an incorrect theory. That is not the law that pertains to the briefing requirements, which requires that we liberally construe briefs and that the statement of an issue will be treated as covering every subsidiary question that is fairly included. See Tex. R. App. P. 38.1(e), 38.9.

          To support its theory that the University waived error by not attacking each ground under which the jury made its liability finding, the majority opinion cites to Britton v. Texas Department of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.). That case holds that when a plea to the jurisdiction is on multiple grounds and a trial court sustains it without specifying the grounds, an appellant waives error by not challenging each of the alternate grounds. Id. In Britton, we explained,

The rule that an appellant must attack all independent grounds supporting a judgment has been applied in many instances. For example, when a summary judgment motion alleges multiple grounds and the order granting summary judgment does not specify the ground on which the summary judgment was rendered, the appellant must challenge and negate all summary judgment grounds on appeal. . . .  Similarly, an appellate court will overrule a challenge to fact findings that underpin a legal conclusion or disposition when other fact findings that support that legal conclusion or disposition go unchallenged. . . .  The same result obtains when more than one legal conclusion independently supports a judgment or ruling, but the appellant challenges only one of those legal conclusions on appeal. . . .  Likewise, when independent jury findings fully support a judgment, an appellant must attack each independent jury finding to obtain reversal.

Id. Britton is correct. See id.

          The majority opinion misapplies both Britton and the underlying arguments and law in this case. See id. Here, the jury charge asked the jury, “Did Stephen Barth make a report of a violation of law in good faith to an appropriate law enforcement authority?” The jury charge instructed that

“Violation of Law” refers to any violation of state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance. The University of Houston’s rules are adopted under a statute.

          There were no alternate questions that the jury could have answered to support the judgment. The jury was asked a single question concerning whether there was a report to an appropriate law enforcement authority. Thus, there was no alternate question to support the judgment, as required for there to be any waiver under Britton. See id.

          The majority opinion’s finding of waiver is erroneous because (1) assuming that an appellant must challenge each part of the definition of a term to avoid waiver, the University did that here, and (2) the law of waiver does not require that an appellant negate all theoretically possible alternative ways that are listed in a definition of a term.

          First, assuming that, as the majority opinion holds, the appellant must challenge each part of the definition of the term to avoid waiver, the University did that here. The definition of “Violation of Law” was challenged by the University in its argument that only the Penal Code was violated, which addresses the portion of the definition that states that the term “refers to any violation of state or federal statute, [or] an ordinance of a local governmental entity.” The definition of “Violation of Law” was further challenged by the University in its argument that no law was violated because none of the University’s rules met the definition of law in the jury charge, which defined law as “a rule adopted under a statute or ordinance.” Nothing in the jury charge defined law as a state regulation. Thus, it was unnecessary for the University to mention state regulations because that was not an alternative given to the jury in the definition of “Violation of Law.” The University plainly argues that the only law that the record shows could have been violated was the Penal Code and that none of the University rules were laws. Thus, the University challenged every theory under the definition of “Violation of Law” that was given to the jury.

          Second, the law of waiver does not require that an appellant negate all theoretically possible alternative ways that are listed in a definition of a term. All that is required is that the appellant challenge the evidence and theories actually presented to the trial court or jury. Here, the University presented its theory that the only evidence in the record that met the definition of law was the Penal Code violations. That challenge was sufficient to preserve the University’s legal-sufficiency complaint.

          Unlike the examples in Britton that concern the failure to challenge alternate grounds that could support a judgment, here the University’s argument attacks each of the elements of a claim under the Act. The majority opinion stretches the law of waiver by now saying that if a party’s closing argument presents multiple alternate theories to the jury concerning a definition of one of the terms, to preserve error, the appellant will have to negate each of those alternate parts of the definition in its initial briefing, or any error will be waived, even if the appellant properly challenges each of the elements of the claim and presents its theory concerning the applicable definition of the term. That is not what Britton holds. See id.

          In short, the majority opinion violates the briefing requirements of the Rules of Appellate Procedure. See Tex. R. App. P. 38.1(e), 38.9. The majority opinion accuses the dissenting opinion of “improperly becom[ing] an advocate for the University” and states, “This we cannot do.” However, it is well established that an intermediate appellate court has the obligation to address the arguments of the parties, and that this is something that we must do.

          I would hold that the legal sufficiency challenge is not waived under these circumstances, which undisputedly show that the University challenges the elements of the cause of action, cites to the record, cites to case law, presents a cogent argument, and presents a legally correct theory that could properly result in the resolution of the appeal. See id. Because the University’s brief adequately challenges the legal sufficiency of the evidence, the majority opinion errs by refusing to address the points raised in the appeal.

The Whistleblower Act

          The Whistleblower 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.” See Needham, 82 S.W.3d at 317 (quoting Tex. Gov’t Code Ann. § 554.002(a)). We review de novo as a question of law the determination whether the reports made to the University employees were to appropriate law enforcement officials. City of Houston v. Kallina, 97 S.W.3d 170, 173 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).  

          The Act 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 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.” Tex. Gov’t Code Ann. § 554.002(b).

          A. The Definition of Law under the Whistleblower Act

          To determine whether Barth reported the conduct to the proper law enforcement authority, it is necessary to first examine what laws were violated. Under the Act, “law” means a state or federal statute, an ordinance of a local government entity, or a rule adopted under a statute or ordinance. Tex. Gov’t Code Ann. § 554.001(1). An administrative rule or regulation is considered a law under the statute. See City of San Antonio v. Heim, 932 S.W.2d 287, 290–91 (Tex. App—Austin 1996, writ denied). However, a violation of a department’s internal policy is insufficient to meet the definition of law in the Act. Harris County Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996). Here, there is no dispute that a violation of the Penal Code or a violation of a civil administrative rule or regulation is considered a law under the Act. The dispute is whether an administrative rule of the university or the university system is considered a law under the Act.

          Rules enacted by the Board of Regents meet the definition of law under the Act. Fazekas v. Univ. of Houston, 565 S.W.2d 299, 304 (Tex. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.) (“Since the Board of Regents of the University of Houston is authorized by statute to enact bylaws, rules and regulations necessary to the government of the University, its rules are of the same force as would be a like enactment of the legislature.”).

          The University contends that no evidence shows “that the Board, pursuant to its statutory authority, actually adopted the rule or policy” and that, without that showing, the evidence is legally insufficient to show that the rule or policy was a law, as defined by the Act. The University’s position is that the situation here is unlike Fazekas, because in Fazekas there was evidence before the court that the University’s Board of Regents had revised the policy at issue in that case, but here, no evidence shows the Board enacted the rule. Id. Barth responds that all the University’s rules are enacted under the Board of Regent’s statutory authority. Barth contends that the Board of Regents instituted its policies through the University’s System Administrative Memorandum, commonly referred to as the SAM, and the University’s internal Manual of Administrative Policies and Procedures, commonly referred to as the MAPP. I address the SAM and the MAPP separately. 

                    1. The SAM

          The University’s position is that the SAM was not promulgated pursuant to the Board’s authority. The University points to testimony by Guyton, the University’s internal auditor who reported to the Board of Regents. Guyton testified,

You have three levels of policies. You have the Board policies, which the Board of Regents develops, and then you have the System policies, which is the system, the University of Houston system, that level. And then you have the campus. Each of the campuses are under the System. So that’s the campus level policy.

The University contends, “Nowhere in this dialog does Guyton ever testify that the Board of Regents adopted the MAPP or the SAM, approved them, or had any authority over their creation in any way.”

          The University, however, ignores Guyton’s testimony describing the Board of Regents’s role over the rules in the SAM. The record shows,

[Attorney:] The Board has their own policies?

[Guyton:] Right.

[Attorney:] But pursuant to those policies, they are policies that are established for the University of Houston System as a whole, correct?

[Guyton:] That’s correct.

[Attorney:] And there are also policies that, pursuant to the Board’s authority, that are policies and rules that are issued for each component of the University of Houston System?

[Guyton:] That’s correct.

(Emphasis added.) The record therefore supports Barth’s position that the policies in the SAM are set forth under the authority of the Board of Regents for the University of Houston System as a whole. Thus, according to Guyton’s testimony, a violation of the SAM would be sufficient to show a violation of the law under the Whistleblower Act because the SAM is an administrative rule set by the Board of Regents, which is considered a law under the Act. See Tex. Gov’t Code Ann. § 554.001(1); Fazekas, 565 S.W.2d at 304.

                    2. The MAPP

          Barth contends that the MAPP was enacted under the Board of Regents’ statutory authority. The record, however, has no evidence to support that assertion. Guyton testified as follows:

[Guyton:] At this time the Manual of Administrative Policies and Procedures. That’s the University of Houston’s Administrative Policy Manual.

[Attorney:]Those are - those are enacted pursuant to the authority of the Board of Regents?

[Guyton:] No, that’s the campus policies.

A violation of the MAPP, therefore, is a violation of internal policy, which is not subject to the protections in the Act. See Kallina, 97 S.W.3d at 175 (“Neither was adopted by the Houston City Council. It is quite clear that these manuals (and the hundreds of pages they contain) reflect internal policies rather than rules promulgated pursuant to an ordinance.”); Ruiz v. City of San Antonio, 966 S.W.2d 128, 130 n.5 (Tex. App.—Austin 1998, no pet.) (“Nothing in the record indicates the Department promulgated its internal policies pursuant to statute or ordinance.”).

          B. Law Enforcement Authority in Whistleblower Act

          Having determined that the SAM, regulations that govern state contracts, and the Texas Penal Code are the pertinent laws, the next determination is whether Barth reported the conduct was to an appropriate law enforcement authority. Barth contends he had a good faith belief that his report to Guyton and Harris satisfied the Act’s requirement that the report be made to an appropriate law enforcement authority. The University, however, responds that none of the people to whom Barth reported meet the definition of law enforcement authority under the Act, and the report to the University Police Department came too late because it was after the retaliatory acts claimed by Barth. I address separately each of the people to whom Barth reported, Barth’s claim of good faith, and the ultimate report to the University Police that came after the complained of retaliatory acts.

                    1. The Report to Guyton

           Guyton, the internal auditor, would be an appropriate law enforcement authority if he were authorized (1) to regulate or enforce the law alleged to be violated in the report or (2) to investigate a violation of criminal law. See Tex. Gov’t Code Ann. § 554.002. No evidence, however, shows that Guyton was an appropriate law enforcement authority under the Act because (1) Guyton could not regulate or enforce any civil law, including the SAM, and (2) Guyton could not investigate or prosecute a violation of criminal law. See id.

                              a. Regulation or Enforcement of Civil Law

          As discussed in more detail in the section regarding waiver of the appeal, Barth never asserts that Guyton, as the internal auditor, has the authority to regulate or enforce any civil law, which is the first alternative way to prove that someone is a law enforcement authority under the Act. See id. Barth limits his argument to the second alternative way to prove that someone is a law enforcement authority under the Act, which pertains to the person’s authority to investigate a violation of criminal law. Although Barth attempts to misapply the second alternative by referencing the investigation of violations of civil law in addition to criminal law, the second alternative plainly applies only to investigations of violations of criminal law. Tex. Gov’t Code Ann. § 554.002 (“[A] report is made to an appropriate law enforcement authority if the authority . . . 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”); see Needham, 82 S.W.3d at 317–18.

          Assuming that Barth is attempting to assert that he could regulate or enforce a civil rule or regulation, a close examination of the Government Code does not support that position. Under section 2102.003, Guyton is authorized to conduct audits including an “investigation described by Section 321.0136.” Tex. Gov’t Code Ann. § 2102.003 (Vernon Supp. 2007). Section 321.0136 defines “investigation” as “an inquiry into specified acts or allegations of impropriety, malfeasance, or nonfeasance in the obligation, expenditure, receipt, or use of state funds, or into specified financial transactions or practices that may involve such impropriety, malfeasance, or nonfeasance.” Tex. Gov’t Code Ann. § 321.0136 (Vernon 2005) (emphasis added). Guyton’s duties, according to the Government Code, are to report directly to the state agency’s governing board, to develop an annual audit plan, to conduct audits, to prepare audit reports, to conduct quality assurance reviews, and to conduct economy and efficiency audits. See Tex. Gov’t Code Ann. § 2102.007 (Vernon Supp. 2007). Although the Government Code authorizes Guyton to inquire about financial impropriety or malfeasance, nothing in the Code gives Guyton the authority to “regulate under” or “enforce” the rules in the SAM or any civil state rule or regulation.

          Guyton’s trial testimony is consistent with the authority described in the Government Code. As Guyton testified, “Our Board of Regents policy on auditing has full and free access to personnel, books records, and they’ve got to talk to us. . . . I can’t fire anybody, or bring disciplinary action against them. All I can do is report that.” Guyton thus acknowledges that he had no enforcement power. As Guyton’s testimony and the Code make clear, Guyton is not a law enforcement authority under the first alternative in the Act because Guyton could not regulate or enforce the SAM or any civil rule or regulation. See Tex. Gov’t Code Ann. § 554.002.

                              b. Investigation or Prosecution of Violation of Criminal Law

          Under the second alternative to prove that the report was to an appropriate law enforcement authority, the evidence must show that Guyton could investigate or prosecute a violation of criminal law. See id.; Needham, 82 S.W.3d at 319. “[G]eneral authority to regulate, enforce, investigate or prosecute” is “not enough.” See Needham, 82 S.W.3d at 319 (emphasis in original). Barth contends that the conduct concerning the false statements on the payment vouchers constituted the crime of “Tampering with Governmental Record,” as described in section 37.10 of the Texas Penal Code. Tex. Penal Code Ann. § 37.10 (Vernon Supp. 2007).

          The Government Code gives Guyton the power to investigate and inquire into financial impropriety and malfeasance pursuant to his duties as an auditor, but it does not authorize him to conduct criminal investigations for purposes of prosecution. See Tex. Gov’t Code Ann. §§ 321.0136, 2102.007. Guyton explains that he investigates suspected criminal activity “up to the point where we say there is a possibility” that fraudulent activity has occurred and then turns it over to the police. In his testimony, Guyton describes his role as follows:

When we find evidence of suspected criminal activity, we turn it over to the police and then assist them in their investigation. They’re the ones who actually investigate the criminal activity.          Guyton’s role in the investigation of impropriety or malfeasance is similar to that of the supervisor in Kallina, which was found to be legally insufficient. See Kallina, 97 S.W.3d at 173–74. As the Kallina court stated,

Here, the reported violation concerned theft. There was no evidence Harris or anyone else in the City’s asset management department had (or that Kallina believed they had) any authority to investigate, enforce, or prosecute a violation of the state’s penal laws regarding property theft. At most, the evidence showed Harris had administrative responsibility for assets in the warehouse, regulated and enforced departmental rules for protecting that property, and was required to investigate and report any criminal activity. But Kallina conceded he knew Harris could only forward evidence of theft to the police for actual investigation and prosecution under state law. Needham holds this is not enough.

Id. (citing Needham, 82 S.W.3d at 321) (emphasis added). I would hold that although Guyton was required to investigate for improprieties and malfeasance, power to conduct an inquiry as an auditor does not, as a matter of law, show that he was authorized to “investigate a violation of criminal law” or prosecute criminal law because, upon any belief that a criminal law was violated, his role as the auditor was to turn the matter over to the police for a criminal investigation. See Tex. Gov’t Code Ann. § 554.002. Guyton, thus, is not an appropriate law enforcement authority as a matter of law.

                    2. The Report to Harris

          To show he reported to a proper law enforcement authority, Barth relies on his report to Harris, the University’s Senior Vice-President for Finance and Administration, the chief financial officer for the University, and the person to whom the University Police Department reported. But Harris was not an appropriate law enforcement authority under the Act.

                              a. Regulation or Enforcement of Civil Law

          One way for Harris to be an appropriate law enforcement authority is for the evidence to show that he could “regulate under” or “enforce” civil regulations or the SAM. See Tex. Gov’t Code Ann. § 554.002. No one claims, and no evidence shows, that Harris could regulate or enforce civil regulations concerning state contracts. The question, therefore, is whether Harris could regulate under or enforce the SAM, which are the rules that apply to the University of Houston system.

          The only argument by Barth is the single sentence that states that Harris “had the authority to regulate and enforce [University] Rules with respect to financial matters and improprieties.” The record shows that Harris had the authority to enforce “the University of Houston’s rules regarding financial affairs.” Nowhere in this testimony does it show whether Harris was referring to the rules in the MAPP or the SAM. If Harris was referring to the “rules” in the MAPP, his authority would not meet the requirements in the Act because the rules in the MAPP, as explained above, are not considered law under the Act. However, if Harris was referring to the “rules” in the SAM, his authority would meet the requirements in the Act because the rules in the SAM, as explained above, are considered law under the Act. Because the evidence does not specify whether the “rules regarding financial affairs” are the type of rules that would be considered laws under the Act, the record fails to show any evidence that Harris could regulate or enforce any law.

                              b. Investigation or Prosecution of Violation of Criminal Law

          Barth contends that Harris’s general oversight over the University Police Department is sufficient to show that he could investigate a violation of criminal law. The University’s position is that the administrative responsibility for the police department did not give Harris any authority over the police investigative or prosecutorial actions.

          The mere fact that Harris provided the general oversight for the police department does not give him the authority to investigate crimes. According to testimony by Frank Cempa, a former University police officer, “the police department was always autonomous in identifying criminal activity [and] present[ing] the findings to the Harris County District Attorney’s Office.” The record shows that when Barth reported his concerns about Stutts to Harris, Harris did not personally investigate whether there were any violations of criminal law; rather, he referred Barth’s allegation to Guyton and his audit team. To the extent that Harris had the authority to refer concerns to the police or to Guyton, that power is similar to the investigatory power found legally insufficient in Kallina because Harris’s role was limited to turning information over to the police for the police to investigate. See Kallina, 97 S.W.3d at 173–74.

                    3. The Requirement to Report Violation to University Police

          Barth points to section 01.C.04 of the SAM, which provides that “employees shall report suspected criminal activity” to the appropriate campus police department; the University System Director, Risk Management or Component Risk Management liaison; the Director of Internal Auditing; the University General Counsel; or the Component Chief Financial Officer. Barth contends that this “System Rule on reporting suspected criminal activity provides that a report to Harris, Guyton, Duffy or the [University Police Department] triggers a report to all of them.” However, nothing in the Act provides that the requirements are satisfied by a report to someone who is not an appropriate law enforcement authority, but is required to report the conduct to an appropriate law enforcement authority. See Needham, 82 S.W.3d at 321–22 (holding that Needham’s “belief that [the Texas Department of Transportation] could forward information to another entity to prosecute a drunk driving allegation” was insufficient to show good faith by Needham).   

          The record shows that section 01.C.04 of the SAM, to which Barth points, plainly gives the police department the exclusive authority to conduct the investigation. Section 3.9 of the SAM states, “If the campus police department determines that the crime committed is against the university, the campus police department shall file charges.” Further, section 3.4 allows the campus police to request assistance from the auditor “to assist in determining whether assets were misappropriated and to determine the extent or estimated amount of loss.” These sections plainly show that the entity responsible for conducting the criminal investigation is the University Police Department, with others to assist it by providing information to the Department upon its request. I would hold that no evidence shows that Harris could investigate or prosecute a violation of criminal law. See Tex. Gov’t Code Ann. § 554.002.

          C. Good Faith

           The University contends that based on Barth’s experience and training, Barth could not objectively have had a good faith belief that he was making a report to an appropriate law enforcement authority. An employee need only show a good faith belief. Tex. Gov’t Code Ann. § 554.002(a). “Good faith” under the Act means (1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and (2) the employee’s belief was reasonable in light of the employee’s training and experience. City of Weatherford v. Catron, 83 S.W.3d 261, 269 (Tex. App.—Fort Worth 2002, no pet.). “The test for good faith belief regarding an appropriate law enforcement authority consists of a subjective and objective prong, both of which must be satisfied in order to satisfy the good faith standard.” Tex. Dep’t of Assistive and Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 402 (Tex. App.—Austin 2005, no pet.). Here, Barth’s testimony established the subjective prong. However, no evidence meets the objective prong.

          The objective prong requires that the employee’s belief that the report was made to an appropriate law enforcement authority be reasonable in light of his training and experience. Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). Consequently, those who are trained in law enforcement and investigation are held to a higher burden in establishing the reasonableness of their belief of criminal law violations. Id. at 785. For example, the reasonableness of a peace officer’s belief that a law has been violated will be examined more closely than will the belief of one in another, non-law-enforcement profession. Id.; Grabowski, 922 S.W.2d at 956 (holding Grabowski did not meet second prong because his belief was not reasonable “in light of his experience as a peace officer” with “more experience than those in other professions in deciding whether an act is a violation of law”).

          Barth was a practicing attorney, a faculty member at the University, a member of the University Faculty Senate, and had experience with the requirements of the Act. I would hold that the evidence is legally insufficient to show that Barth’s belief was objectively reasonable in light of his training and experience as an attorney who has familiarity with the requirements of the Act. See Grabowski, 922 S.W.2d at 956; Hart, 917 S.W.2d at 784. I would hold that Barth could not objectively have had a good faith belief that he was making a report to an appropriate law enforcement authority and, therefore, that the evidence is legally insufficient to establish a violation of the Act.

          D. Causation

          Barth did ultimately report the purported violations to the University Police Department, but that report came too late because it did not occur until after the retaliatory acts of which he complains occurred. The University is correct that the report to the University Police did not occur until June 23, 2000, which is after the complained of retaliatory acts, because the last retaliatory act occurred on May 8, 2000, when Barth received the evaluation for the 1999–2000 school year. Because the report to the University police about Stutts’s conduct did not occur until after the complained-of acts against Barth by Stutts occurred, the evidence is legally insufficient to meet the causation element of the Act. Further, the evidence is legally insufficient because no evidence establishes any of the challenged elements of the Act. More specifically and as explained above, no evidence shows that Barth made a report to an appropriate law enforcement authority or that he acted in good faith in making the report to a person he believed was an appropriate law enforcement authority.

                                                          Conclusion

          I would reverse the judgment of the trial court and render judgment in favor of the University.

Elsa Alcala

                                                             Justice

Panel consists of Justices Nuchia, Alcala, and Higley.

Justice Alcala, dissenting.