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City of Hereford v. Frausto

Court of Appeals of Texas, Seventh District, Amarillo

January 16, 2018


         On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. CI-16F-076, Honorable Roland Saul, Presiding

          Before QUINN, CJ., and CAMPBELL, and PARKER, JJ.



         The 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 affirm.


         The 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 that investigation.

         Frausto 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

         Health 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.[1] 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 Whistleblower Act.


         Per § 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 798.

         Next, 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.

         Regarding "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)).

         Here, 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 employment").

         As 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.[2] And, we turn to the task of assessing whether the ...

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