the City of Celina, Texas v. Shea Scott

AFFIRMED and Opinion Filed April 13, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00823-CV
THE CITY OF CELINA, TEXAS, Appellant
V.
SHEA SCOTT, Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-18195
MEMORANDUM OPINION
Before Justices Carlyle, Smith, and Garcia
Opinion by Justice Smith
Appellee Shea Scott sued the City of Celina under the Texas Whistleblower
Act (the Act) after the City terminated him. The City filed a plea to the jurisdiction,
which the trial court denied. In three issues, the City argues Scott failed to invoke
the protections of the Act because he did not make a report to an appropriate law
enforcement authority. We disagree with the City’s interpretation of the Act and
cited case law. We affirm the trial court’s order denying the City’s plea to the
jurisdiction. We deny Scott’s request to sanction the City for filing a frivolous
appeal.
Background
The following facts are from Scott’s original and amended petitions. Scott
was the City’s assistant chief of police. On June 8, 2020, Scott received emails from
Sam Jeter, the husband of Jennifer Jeter, who was the City’s human resources
director. The emails indicated that Jennifer committed criminal family violence by
pointing a loaded gun at Sam and possessed illegal drugs and drug paraphernalia.
Because Scott received information about criminal conduct, he in good faith
believed the law required him to report the allegations to a law enforcement agency.
After Scott drafted a criminal complaint, he gave it to Detective Jeremiah Phillips in
the Criminal Investigation Division (CID) and instructed Phillips to file it with the
proper law enforcement agency. At that time, Scott was unsure where the Jeters
lived. Phillips determined they lived in Denton County and subsequently filed the
criminal complaint with the Denton County Sheriff’s Office. Scott also filed an
internal complaint with the police chief regarding Jennifer’s conduct.
The City hired outside counsel to investigate the allegations against Jennifer.
After the City discovered false information on her resume, Jennifer resigned on July
2, 2020. Outside counsel then continued to investigate the police department, the
police chief, and Scott.
According to Scott, the city manager told him not to investigate “my
directors” and that Scott should have violated the law and kept the allegations against
Jennifer a secret instead of reporting them. The city manager expressly prohibited
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Scott or other members of the police department from reporting misconduct by any
City employee at the director level or above without the city manager’s approval.
On August 3, 2020, the City hired an interim police chief. On August 12,
2020, the City placed Scott on administrative leave and demanded resignation or
face termination. The City did not identify any violation or justification for the
decision. Scott refused a severance offer and requested reinstatement. Instead of
reinstatement, the interim police chief drafted a list of grievances against Scott
allegedly based on audits performed by an independent auditor and the human
resources department. Scott was never provided copies of these audits. Scott
responded to the grievances and stated the real reason for the grievances was
retaliation for reporting Jennifer’s alleged criminal conduct.
On October 5, 2020, Scott received written notice of his termination. He
timely appealed his termination, participated in a hearing, but did not receive a
decision.
Scott subsequently filed suit under the Act. He believed he was wrongfully
terminated because he in good faith reported a violation of law by another public
employee to an appropriate law enforcement authority. Scott attached to his petition
the emails from Sam, and a copy of his “FORMAL COMPLAINT,” dated June 9,
2020, to the city manager, the police chief, and the city attorney. Scott stated he was
making the complaint “as I have exhausted all options to remedy the situation within
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my chain of command.” His complaint described the drugs and drug paraphernalia
at Jeters’ home, along with details about Jennifer pointing a loaded gun at Sam.
The City filed its answer and plea to the jurisdiction on January 13, 2021. The
City alleged Scott failed to sufficiently plead facts to waive the City’s immunity.
The City argued Scott’s petition “affirmatively demonstrates [he] did not make a
good faith report to an appropriate law enforcement agency.” The City asserted
Scott’s actions were insufficient to invoke the Act because Scott made an internal
complaint with the City and instructed a subordinate officer to file a criminal
complaint with an unspecified law enforcement agency. Scott subsequently
amended his petition, elaborated on his two written reports, and added a third oral
report.
In the amended petition, Scott explained Phillips was his subordinate. It was
within Scott’s authority to delegate tasks, such as determining the proper jurisdiction
for filing criminal complaints. If after receiving a criminal complaint Phillips
determined the proper authority was another police department, it was within
Phillips’ normal scope and authority to forward the complaint to the proper law
enforcement authority. Within forty-eight hours, Phillips determined the Jeters lived
in Denton County, and he forwarded Scott’s written report to the Denton County
Sheriff’s Office.
After the Denton County Sheriff’s Office received the report, a detective in
the office contacted Scott. Scott then provided an oral report of the alleged criminal
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conduct, including the source of the allegations and other related information. The
City did not amend its plea to the jurisdiction to address this third oral report.
Scott filed a response to the City’s plea to the jurisdiction and sought sanctions
under rule 13. After a hearing, the trial court denied the City’s plea to the
jurisdiction. The trial court stated in the order that Scott’s oral discussion with the
Denton County Sheriff’s Office detective and his written reports to Phillips and the
City’s police chief satisfied “the Texas Whistleblower Act’s requirement for a report
to an appropriate law enforcement agency.” The court denied Scott’s rule 13 motion
for sanctions. This appeal followed.
Standard of Review
A plea to the jurisdiction challenges the court’s authority to decide a case.
Heckman v. Williamson Cty., 369 S.W.3d 137, 149 (Tex. 2012). We review a plea
questioning the trial court’s subject matter jurisdiction de novo. Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus on the plaintiff’s
petition to determine whether the pleaded facts affirmatively demonstrate that
subject matter jurisdiction exists. Id. We construe the pleadings liberally in favor
of the plaintiff. Id.If a plea to the jurisdiction challenges the existence of jurisdictional facts, the
trial court may consider evidence and must do so when necessary to resolve the
jurisdictional issues raised. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 555 (Tex. 2000). When evidence is submitted that implicates the merits of the
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case, our standard of review generally mirrors the summary judgment standard under
Texas Rule of Civil Procedure 166a(c). Miranda, 133 S.W.3d at 228; see TEX. R.
CIV. P. 166a(c). The burden is on the governmental unit to present evidence to
support its plea. Miranda, 133 S.W.3d at 228. If the governmental unit meets this
burden, the burden shifts to the plaintiff to show that a disputed material fact exists
regarding the jurisdictional issue. Id. We take as true all evidence favorable to the
plaintiff and indulge every reasonable inference and resolve any doubts in the
plaintiff’s favor. Id. If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and
the fact question will be resolved by the fact-finder. Id. at 227–28. If the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the
trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
Generally, governmental entities are immune from suit and liability under the
doctrine of sovereign immunity. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).
Sovereign immunity from suit deprives a court of subject matter jurisdiction and is
properly asserted in a plea to the jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635,
638 (Tex. 2004); Miranda, 133 S.W.3d at 225–26. The Act, however, waives
immunity from suit to the extent a governmental entity is liable under its provisions.
See TEX. GOV’T CODE ANN. § 554.0035.
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Discussion
In three issues, the City argues Scott’s two internal reports within the Celina
police department and his phone call with the Denton County Sheriff’s Office do not
qualify as reports to an “appropriate law enforcement agency” to satisfy section
554.002(b) of the government code. See TEX. GOV’T CODE ANN. § 554.002(b).
Scott responds that the City relies on inapplicable case law and ignores a plain
reading of the statute that supports the trial court’s denial of the City’s plea to the
jurisdiction.
The standard for a violation of the Act appears in section 554.002(a). Id.
§ 554.002(a); Lueck, 290 S.W.3d at 881. The elements of a Whistleblower claim
are jurisdictional and may not be waived. Univ. of Houston. v. Barth, 403 S.W.3d
851, 854 (Tex. 2013) (per curiam). Under the Act, a plaintiff is required to prove:
(1) that he was a public employee, (2) that he reported a violation of
law in good faith, (3) that the violation of law reported was committed
by his employing governmental entity or another public employee, (4)
that the report was made to an appropriate law enforcement authority,
and (5) that his employing governmental entity took an adverse
personnel action against him because of the report.
Tex. Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 849 (Tex. App.—Austin
2007, pet. denied); see TEX. GOV’T CODE ANN. § 554.002(a).
The City only challenges whether Scott’s reports were made to an appropriate
law enforcement authority. Section 554.002(b) defines “appropriate law
enforcement authority” as follows:
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[A] report is made to an appropriate law enforcement authority if the
authority is 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). An employee’s belief is in good faith if: (1)
the employee believed the governmental entity was qualified, and (2) the employee’s
belief was reasonable in light of the employee’s training and experience. Tex. Dep’t
of Human Servs. v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014).
To support its position, the City relies on a line of Texas Supreme Court cases
holding that internal reports to another governmental employee, even if that
employee is a supervisor tasked with ensuring internal compliance, are not reports
to an appropriate law enforcement authority.1 The City argues Scott’s reports within
the City’s police department were insufficient to trigger the Act’s protections.
None of the supreme court cases the City cites involved a police officer
reporting a criminal act. Rather, the cases involved internal reports to individuals
within the governmental entity whom the court determined did not possess outward-
1
See, e.g., Ysleta Indep. Sch. Dist. v. Franco, 417 S.W.3d 443, 445–46 (Tex. 2013) (per curiam) (in the
school context, reporting to school officials not charged with enforcing laws outside the district falls short
of what the Act requires); Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 655 (Tex. 2013) (per
curiam) (same); Univ. of Houston v. Barth, 403 S.W.3d 851, 855–58 (Tex. 2013) (per curiam) (holding that
none of the four people Barth reported alleged violations of the penal code—the university’s general
counsel, CFO, internal auditor, and associate provost—could have investigated or prosecuted criminal law
violations against third parties outside the university); Tex. A & M Univ.–Kingsville v. Moreno, 399 S.W.3d
128, 130 (Tex. 2013) (per curiam) (holding evidence by an employee at state university showing she
reported an alleged violation of law to an authority that only oversaw internal university compliance was
jurisdictionally insufficient under the Act); Gentilello, 398 S.W.3d at 689 (medical school faculty member
overseeing federal compliance regulations did not have “law enforcement status” for reports of federal law
violations); Lueck, 290 S.W.3d at 885–86.
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looking enforcement or regulatory powers. See, e.g., Gentilello, 398 S.W.3d at 686,
689 (“[F]or an entity to constitute an appropriate law-enforcement authority under
the Act, it must have authority to enforce, investigate, or prosecute violations of law
against third parties outside of the entity itself, or it must have authority to
promulgate regulations governing the conduct of such third parties.”).
To the extent the City argues internal complaints are insufficient, the supreme
court has twice rejected the conclusion that a report under the Act “can never be
made internally.” Id. at 686 (emphasis in original); Okoli, 440 S.W.3d at 616–17.
In fact, the supreme court has provided the following hypothetical involving a police
officer:
A police department employee could retain the protections of the
Whistleblower Act if she reported that her partner is dealing narcotics
to her supervisor in the narcotics or internal affairs division. In such a
situation, the employee works for an entity with authority to investigate
violations of drug laws committed by the citizenry at large.
See Okoli, 440 S.W.3d at 611; Gentilello, 398 S.W.3d at 686. The Okoli court
further recognized that the whistleblower in the hypothetical was reporting a
violation of law to a police officer, and “a police officer is authorized to investigate
violations of law and to cite or arrest persons suspected of committing such
violations.” Okoli, 440 S.W.3d at 611.
Scott’s reports to Phillips and the police chief regarding Jeter’s alleged
criminal violations are the types of internal reports that fall within the supreme
court’s hypothetical. Scott made reports to individuals who were “part of a
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governmental arm or entity authorized to conduct criminal law investigations.” See
Okoli, 440 S.W.3d at 617. The Celina police department, as a governmental arm or
entity, had “outward-looking powers” and authority to enforce and investigate
violations of the Texas Penal Code. See, e.g., Raymondville Indep. Sch. Dist. v. Ruiz,
No. 13-19-00597-CV, 2021 WL 822699, at *3 (Tex. App.—Corpus Christi-
Edinburg Mar. 4, 2021, pet. denied) (mem. op.) (affirming denial of school district’s
plea to the jurisdiction when school district truancy officer reported criminal
violation to police chief, as his immediate supervisor, and RISD police department
had authority to investigate such violations). Thus, Scott pleaded sufficient facts
establishing that he in good faith filed two internal reports with appropriate law
enforcement authorities.
In reaching this conclusion, we reject the City’s argument that section
554.002(b)(2) has a geographical requirement limiting an officer’s ability to
investigate or prosecute criminal law violations. The City asserts that even if the
statute allowed Scott to make an internal report, his reports were still not made to an
“appropriate law enforcement authority” because the Celina police department did
not have jurisdiction to investigate alleged criminal violations by a city employee
that occurred outside its jurisdiction. The City, however, admits there are no cases
holding that geography is relevant under the Act, but instead cites two cases “which
clearly assume that is the case.” We are unpersuaded by the City’s assumptions.
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In Tharling v. City of Port Lavaca, 329 F.3d 422 (5th Cir. 2003), a federal
case not binding on this Court, the Fifth Circuit concluded an officer was entitled to
protection under the Act because he reported an alleged criminal violation to the
Texas City police department, the police department “charged with enforcing the
law in Texas City, where the violation occurred.” Id. at 430. The City emphasizes
the “where the violation occurred” language; however, the court’s holding was not
dependent on this fact and is dicta. Similarly, we reject the City’s reliance on
Connally v. Dallas Independent School District, 506 S.W.3d 767, 783 (Tex. App.—
El Paso 2016, no pet.) (acknowledging there was no dispute between the parties that
the DISD police department had authority to investigate penal code violations
occurring within its jurisdiction involving DISD employees or third parties).
A plain reading of the statute requires a person to make a report to an entity
“authorized to investigate or prosecute a violation of criminal law.” TEX. GOV’T
CODE ANN. § 554.002(b)(2) (emphasis added). It does not require that the entity or
agency has authority to investigate or prosecute the violation at issue. The
legislature did, however, include such a limitation in subsection (b)(1), which
requires a person to make a report to an entity “authorized to regulate under or
enforce the law alleged to be violated in the report.” Id. § 554.002(b)(1) (emphasis
added).
We endeavor to read statutes contextually to give effect to every word, clause,
and sentence. See In re Office of Attorney Gen., 422 S.W.3d 623, 629 (Tex. 2013).
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We presume the legislature included each word in the statute for a purpose, and
words not included were purposefully omitted. ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 899 (Tex. 2017). The statutory text is clear. Had the
legislature intended to require a person to make a report to an entity authorized to
investigate or prosecute the violation of criminal law alleged to be violated in the
report, it could have added such language to (b)(2). Because it did not, we decline
the City’s invitation to read language into the statute. We conclude Scott satisfied
section 554.002(b)(2) as to his reports to Detective Phillips and the police chief.
Accordingly, where Jeter lived and where the crimes allegedly occurred is not
relevant to triggering the Act’s protection under section 554.002(b)(2). We overrule
the City’s first and second issues.
In its third issue, the City argues Scott’s conversation with the Denton County
Sheriff’s Department is not entitled to protection because the Sheriff’s Department
initiated the phone call to discuss Scott’s written report, which had been forwarded
to the office. The City provides no authority for its propositions that section
554.002(b) does not apply if an entity reaches out to a party to discuss a report or
that section 554.002(b) does not apply to any further statements a plaintiff makes
once an investigation under the Act begins.
If a report satisfies section 554.002(b)(1) or (2), then the Act applies to the
report. The plain language of the statute does not limit “report” to only the first
report starting the investigation or prohibit protection under the Act to subsequent
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oral statements an employee makes to an entity. To the contrary, there is case law
in which the court analyzed multiple reports when determining if any were provided
to “appropriate law enforcement authorities.” See, e.g., Connally, 506 S.W.3d at
783 (analyzing numerous reports filed to various DISD departments to determine
whether they were appropriate law enforcement authorities under the Act); see also
Barth, 403 S.W.3d at 857–58 (concluding reports to general counsel, CFO, internal
auditor, and associate provost were not reports to an appropriate law enforcement
authority). Further, oral statements qualify as reports under the Act. See Connally,
506 S.W.3d at 784 (noting Act does not require a “formal” report and considering
whether statements made in conversations provided sufficient information to support
conclusion that DISD personal engaged in criminal activity); see also City of Donna
v. Ramirez, 548 S.W.3d 26, 33, 39 (Tex. App.—Corpus Christi-Edinburgh 2017, pet.
denied) (considering whether Act applied to alleged violations of law reported orally
to police chief and municipal judge).
Here, a detective with the Denton County Sheriff’s Office contacted Scott
based on Scott’s original report that Phillips forwarded to the office. Scott then
provided an oral report via telephone of Jeter’s alleged criminal conduct, including
the source of the allegations and other related information. The Denton County
Sheriff’s Office was an “appropriate law enforcement authority” because the office
was part of a local government entity investigating a violation of criminal law. See
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TEX. GOV’T CODE ANN. § 544.002(b)(2). The trial court did not err by denying the
City’s plea to the jurisdiction on this basis. We overrule the City’s third issue.
Rule 45 Motion for Sanctions
Scott has requested we sanction the City pursuant to rule of appellate
procedure 45 for bringing a frivolous appeal because the City ignores clear statutory
language, ignores language of the cases it relies upon, relies upon a ground not
properly preserved, and uses its appeal for needless delay. Rule 45 permits an award
of just damages to the prevailing party of an appeal when the court determines the
appeal is frivolous. See TEX. R. APP. P. 45.
“An appeal is frivolous when the record, viewed from the perspective of the
advocate, does not provide reasonable grounds for the advocate to believe that the
case could be reversed.” See Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 290
(Tex. App.—Dallas 2012, no pet.). Our decision to grant appellate sanctions is a
matter of discretion that we exercise with caution, careful deliberation, and only in
truly egregious circumstances. Id. Moreover, rule 45 does not require that we award
damages in every frivolous appeal. See Performance Pulsation Control, Inc. v.
Sigma Drilling Techs., LLC, No. 05-17-01423-CV, 2018 WL 6599180, at *2 (Tex.
App.—Dallas Dec. 17, 2018, no pet.) (mem. op.).
After reviewing the record and briefing filed in this Court, we conclude this
appeal does not present the type of egregious circumstances warranting the
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imposition of sanctions. Accordingly, we deny Scott’s request for damages under
rule 45.
Conclusion
The trial court’s order denying the City’s plea to the jurisdiction is affirmed.
/Craig Smith/
CRAIG SMITH
JUSTICE
210823F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE CITY OF CELINA, TEXAS, On Appeal from the 44th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-20-18195.
No. 05-21-00823-CV V. Opinion delivered by Justice Smith.
Justices Carlyle and Garcia
SHEA SCOTT, Appellee participating.
In accordance with this Court’s opinion of this date, the order denying
appellant The City of Celina’s plea to the jurisdiction is AFFIRMED.
It is ORDERED that appellee SHEA SCOTT recover his costs of this
appeal from appellant THE CITY OF CELINA, TEXAS.
Judgment entered April 13, 2022.
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