Appeal from the 151st District Court Harris County, Texas
Trial Court Case No. 2014-69569
consists of Justices Keyes, Higley, and Lloyd.
Russell Lloyd Justice
Michael Barnett, appeals from the trial court's order
granting appellee, City of Southside Place's plea to the
jurisdiction in his suit brought under the Texas
Whistleblower Act. See Tex. Gov't Code Ann.
§§ 554.001-.010 (West 2012). In three issues,
Barnett contends that the trial court erred in granting the
City's plea because (1) the evidence raises a fact issue
regarding whether (a) he suffered an adverse employment
action and (b) the action was because of his report of the
City's alleged violation of law, and (2) he should have
been permitted an opportunity to conduct additional
discovery. We affirm.
worked as a detective for the City from approximately March
2013 to September 2014. During the time period relevant to
this appeal, Stephen McCarty was the City's Chief of
2014, Barnett told McCarty that he had learned that the City
had implemented an illegal ticket quota practice with its
officers. On August 15, 2014, McCarty prepared a
written memorandum to the Texas Rangers, summarizing a list
of his grievances against David Moss, the City Manager,
including the alleged ticket quota requirement. On August 16,
2014, Chief McCarty sent an email to Glenn Patterson, the
City Mayor, attaching his August 15 memorandum. On August 18,
2014, Barnett and McCarty met with Texas Ranger Jeff Owls, at
which time they reported the City's alleged ticket quota
practice and presented McCarty's August 15 memorandum to
August 19, 2014, one day after meeting with Owls, Barnett
submitted a letter of resignation to Moss and McCarty with an
effective date of September 3, 2014. On August 20, 2014, the
City suspended McCarty pending an investigation into
complaints about McCarty's conduct. On August 31, 2014,
Moss sent an "Inquiry Memo" to department officers
requiring them to answer a number of questions related to
allegations of McCarty's misconduct. In their answers,
two officers alleged that Barnett had encouraged them to
leave the City's employment on more than one occasion
between August 20 and August 30, 2014.
Inquiry Memo dated September 2, 2014, Moss informed Barnett
that he was conducting an internal investigation into the
officers' allegations regarding Barnett's alleged
misconduct and directed him to answer the written questions
and provide the documentation requested in the memo. The memo
stated that the allegations, if true, constituted
insubordination which would warrant Barnett's involuntary
separation from the City's employment. In response,
Barnet refused to answer the questions and informed Moss that
he was resigning his position with the City, effective
September 2, 2014, Moss prepared a Notice of Termination
letter stating that Barnett's employment with the City
was terminated for insubordination based on (1) his refusal
to comply with Moss's instructions related to the
City's internal investigation into his conduct and (2)
his suggestion to two other officers that they resign their
employment with the City. On October 23, 2014, the City
submitted a Texas Commission on Law Enforcement
("TCOLE") "Separation of Licensee (F-5)"
form reflecting that Barnett had been "dishonorably
discharged." In an accompanying letter to TCOLE, the
City stated that the F-5 form was intended to amend a
previous F-5 form completed by Barnett, and that Barnett had
also completed F-5 documents for two other officers.
November 26, 2014, Barnett filed suit against the City
alleging that he had suffered adverse employment actions in
retaliation for reporting a violation of law by the City to
McCarty and the Texas Rangers. On November 9, 2015, the City
filed its plea to the jurisdiction, arguing that the trial
court lacked subject matter jurisdiction over Barnett's
whistleblower claim because (1) the City did not take any
adverse personnel action against him; (2) even if it had,
there was no evidence that the adverse employment action was
because of his report of the City's alleged violation of
law; and (3) even if the City knew of his report before his
separation from employment, it had a legitimate basis to
terminate his employment based on his insubordination. On
December 14, 2015, the trial court granted the City's
plea and dismissed Barnett's whistleblower claim with
appeal, Barnett contends that the trial court erred in
granting the City's plea because the evidence raises a
fact issue regarding whether he was suspended, terminated, or
suffered some other adverse personnel action because he
reported a violation of law by the City. He also argues that
the trial court erred in ruling on the City's plea
without permitting him to conduct additional discovery
Plea to the Jurisdiction
immunity from suit defeats a trial court's subject matter
jurisdiction and is therefore properly asserted in a plea to
the jurisdiction. See Tex. Dep't. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
Absent a waiver of governmental immunity, a governmental
entity cannot be sued and a trial court does not have subject
matter jurisdiction over an action against the entity.
See Tex. Dep't of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex. 1999). Whether a trial court has subject matter
jurisdiction is a question of law. See Tex. Natural Res.
Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002). Pleadings are construed liberally in favor of
the pleader, and all factual allegations are accepted as
true. See Miranda, 133 S.W.3d at 227-28.
to the jurisdiction can be utilized to challenge whether the
plaintiff has met his burden of alleging jurisdictional
facts, but it can also raise a challenge to the existence of
jurisdictional facts. See id. at 226-27.
Where a plea to the jurisdiction challenges the existence of
jurisdictional facts, as is the case here, the court
considers the relevant evidence submitted by the parties to
resolve the jurisdictional issues. Id. at 227. If
the evidence creates a fact question regarding jurisdiction,
the trial court must deny the plea to the jurisdiction and
leave its resolution to the fact finder. Id. at
227-28. On the other hand, if the 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. Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
Texas Whistleblower Act
554.002(a) of the Government Code provides that "[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." Tex. Gov't Code § 554.002(a) (West
2014). The Whistleblower Act further provides that "[a]
public employee who alleges a violation of this chapter may
sue the employing state or local governmental entity for the
relief provided by this chapter." Id. §
554.0035 (West 2014).
contains two jurisdictional requirements before its waiver of
governmental immunity takes effect: the plaintiff must (1) be
a public employee and (2) allege a violation of the Act.
See State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009).
To allege a violation of the Act, the plaintiff must allege
that an adverse employment action was taken against him
because he in good faith reported a violation of law by the
employer or another public employee to an appropriate law
enforcement authority. Tex. Gov't Code § 554.002(a);
City of S. Houston v. Rodriguez, 425 S.W.3d 629, 631
(Tex. App.-Houston [14th Dist.] 2014, pet. denied). The
elements of section 554.002(a) can be considered to determine
both jurisdiction and liability. Lueck, 290 S.W.3d
plea and on appeal, the City does not dispute that Barnett is
a public employee, that he made a good faith report that his
employer or another public employee violated the law, or that
he made the report to an appropriate law enforcement
authority. Rather, the City argues that Barnett failed to
present evidence raising a fact question as to whether (1) he
suffered an adverse employment action and (2) the action was
because he reported a violation of law.
asserts that he suffered adverse employment actions when the
City (1) terminated his employment; (2) drafted a Notice of
Termination letter and placed it in his file; (3) submitted
an F-5 form to TCOLE reflecting that he was dishonorably
discharged; and (4) falsely accused him of submitting F-5
forms to TCOLE. In support of his argument that his
employment was terminated, Barnett relies on Moss's
deposition testimony that he fired Barnett, the Notice of
Termination letter, and the City's letter to TCOLE
regarding the amended F-5 form stating that the City
terminated Barnett's employment on September 2, 2014.
Barnett argues that this evidence demonstrates that the City
intended to, and believed it had, fired him.
Barnett's assertion that his employment was terminated is
belied by his own sworn testimony that he voluntarily
resigned before he received the termination letter.
At his deposition, Barnett testified as follows:
Q: And your testimony in this case today is that you
Q: Is that yes?
. . . .
Q: Well-your impression as it may be, we know you voluntarily
A: Yes, I did.
. . . .
Q: Stress, okay. Tell me about your stress, please, as it
relates to this lawsuit.
A: Obviously, it's going to cause stress if you get a
letter in the mail saying that you were terminated after ...