Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 222nd District Court Deaf Smith County, Texas
Trial Court No. CI-16F-076, Honorable Roland Saul, Presiding
QUINN, CJ., and CAMPBELL, and PARKER, JJ.
QUINN, CHIEF JUSTICE
City of Hereford appeals from an order denying its original
and amended plea to the jurisdiction. Through those motions,
the City requested the trial court to dismiss Javier
Frausto's suit against it. He had sued the City under the
Texas Whistleblower Act. See Tex. Gov't Code
Ann. §§ 554.001-.010 (West 2012). The record
indicates that the City answered the suit, affirmatively
invoked the defense of immunity, and filed the aforementioned
original and an amended plea to the jurisdiction of the
court. As specified in the amended plea, "[t]he subject
of this plea to the jurisdiction is the 'good faith'
report component of Frausto's Whistleblower Claim."
In other words, the City believed that Frausto could not
prove that a reasonably prudent person with Frausto's
training and experience would have believed that the
purported act allegedly constituting a violation of the law
was such a violation. The trial court denied the plea, and
the City appealed. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(8) (West Supp. 2017) (authorizing
an interlocutory appeal from an order that "grants or
denies a plea to the jurisdiction filed by a governmental
unit as that term is defined in Section 101.001" of the
Texas Civil Practice and Remedies Code, which provision
includes cities). For the most part, the argument urged below
forms the basis of the City's two issues before us. We
story begins with a dog (i.e., a husky) running free in a
local neighborhood. At the time, Nena Aguillon and Destiny
Martinez were walking two terriers tethered on leashes. As
they walked, the husky ran at and engaged them. The
husky's owner (Macye White) retrieved the animal, and
Aguillon reported the attack to the police. Upon responding
to the report and taking statements from the respective
parties, the police forwarded the incident to the local
animal control department for further investigation. Frausto
happened to be the employee of that department tasked with
contacted Aguillon and, thereafter, filed a supplement to the
police report. In that supplement, he said that (1)
"Mrs. Aguillon stated to me that she wished to file
charges on . . . [White] . . . for allowing her dog to run at
large, [sic] and attacking her"; and (2) "I also
gave Municipal Court Judge Eggan a copy of the incident
report to inform her of the unprovoked attack outside . . .
Whites [sic] property . . . . Nothing further at this
time." Thereafter, Judge Eggan set the matter for
hearing per § 822.0423 of the Texas
and Safety Code to determine whether the husky was a
dangerous dog. See Tex. Health & Safety Code
Ann. § 822.0423(a) (West 2017) (stating that "[t]he
court on receiving a report of an incident under Section
822.0422 or on application under Section 822.042(c), shall
set a time for a hearing to determine whether the dog is a
dangerous dog"). At some point, the Hereford city
attorney became aware of the hearing, purportedly reviewed
the reports submitted to the municipal court judge, and
decided to cancel the hearing. Frausto deemed that decision to
be unlawful and reported it to the local police chief.
Several weeks later, his employment with the animal control
department was terminated. Believing his termination
improper, Frausto sued Hereford for violating the
§ 554.002 of the Texas Government Code, a state or local
government may not suspend or terminate 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 Ann. § 554.002(a). Establishing the
elements of § 554.002(a) results in the governmental
entity losing its sovereign immunity. Id. §
554.0035. And, because a claimant under the statute must
allege facts in his petition sufficient to defeat immunity
and establish the trial court's jurisdiction over the
suit, he necessarily must allege facts sufficient to
establish the elements of § 554.002(a). See Leach v.
Tex. Tech Univ., 335 S.W.3d 386, 395 (Tex. App.-Amarillo
2011, pet. Denied). Yet, in deciding if the suit escapes the
bar of sovereign immunity, the trial court is not restricted
merely to the allegations contained in the complainant's
petition. Rather, it may also consider evidence proffered by
the entity in support of its plea to the jurisdiction.
See Creedmoor-Maha Water Supply Corp. v. Tex. Comm'n
on Envtl. Quality, 307 S.W.3d 505, 513 (Tex. App.-Austin
2010, no pet.) (citing Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.
2004)). Proffering such evidence then triggers the
application of a standard of review similar to the one used
in deciding motions for summary judgment. See Harris Cty.
Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798 (Tex.
2016) (op. on reh'g). That is, the trial court is to (1)
interpret the pleadings in a light most favorable to the
party attempting to sustain the existence of jurisdiction,
(2) accept as true all evidence favorable to that party, and
(3) indulge in every reasonable inference arising from the
evidence and favorable to upholding jurisdiction.
Leach, 335 S.W.3d at 391. And, should the trial
court find that a question of fact exists with regard to the
jurisdictional question when so construing the evidence, it
must deny the plea to the jurisdiction and permit the
fact-finder to ultimately decide those factual questions.
See Suarez v. City of Tex. City, 465 S.W.3d 623, 633
(Tex. 2015). Only when the evidence creates no material
question of fact may it rule on the plea as a matter of law.
See Harris Cty. Flood Control Dist, 499 S.W.3d at
and as previously mentioned, the only issue before the trial
court and us was and is whether Frausto satisfied the
"good faith" component of § 554.002 of the
Government Code. We address nothing else and are asked to
address nothing else. Nor do we in anyway suggest that other
elements of § 554.002 were or can be satisfied.
"good faith, " we note that it has both a
subjective and objective component. Tex. Youth Comm'n
v. Bollinger, No. 07-11 -00152-CV, 2013 Tex.App. LEXIS
6503, at *5-6 (Tex. App.-Amarillo May 28, 2013, pet. denied)
(mem. op.). The subjective prong requires the employee to
actually believe he was reporting a violation of law to an
appropriate law enforcement agency, while the objective
component requires the belief to be objectively reasonable in
light of his training and experience of the employee.
Id. (quoting Tex. Dep't of Transp. v.
Needham, 82 S.W.3d 314, 321 (Tex. 2002)).
Frausto alleged two violations of law purportedly committed
by the city attorney. The first appeared in the opening
sentence of section "6" of his first amended
petition. Therein, he averred that he "reasonably
believed that the cancellation of the hearing by the city
attorney was a violation of Tex. Health & Safety Code
§ 822.0423." Later in the same section he also
averred that he "believed . . . such conduct by the city
attorney constituted an abuse of office in violation of
Section 39.02(a) of the Texas Penal Code." See
Tex. Penal Code Ann. § 39.02(a) (West 2016) (stating
that a "public servant commits an offense if, with
intent to obtain a benefit or with intent to harm or defraud
another, he intentionally or knowingly . . . violates a law
relating to the public servant's office or
represented in his appellee's brief, Frausto "is no
longer purs[u]ing any Whistleblower claim based upon a report
of a violation of Section 39.02 of the Texas Penal
Code." So, the sole violation pertinent to our review is
that relating to the hearing's cancellation by the city
attorney. And, we turn to the task of assessing
whether the ...