Texas Health and Human Services Commission and Kyle L. Janek, Substituted in His Official Capacity for Former Commissioner Thomas M. Suehs v. F. Michael McMillen

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00303-CV

Texas Health and Human Services Commission and Kyle L. Janek, substituted in his
official capacity for former Commissioner Thomas M. Suehs, Appellants

v.

F. Michael McMillen, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-12-002004, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING

MEMORANDUM OPINION

In this interlocutory appeal, appellants the Texas Health and Human Services

Commission (HHSC) and Kyle L. Janek, HHSC’s Executive Commissioner, challenge the trial

court’s denial of their plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

Appellee F. Michael McMillen, a former employee of HHSC, sued HHSC and Janek in his official

capacity alleging violations of the Texas Whistleblower Act and the free speech clause of the Texas

Constitution. See Tex. Const. art. I, § 8; Tex. Gov’t Code §§ 554.001–.010 (Whistleblower Act).

For the reasons that follow, we reverse the trial court’s order and dismiss McMillen’s claims for lack

of jurisdiction.
 BACKGROUND

McMillen, an attorney with over twenty years of experience, was employed by

HHSC’s Office of Inspector General (OIG) as Deputy Counsel from November 2009 until April

2012. He was placed on administrative leave at the beginning of January 2012, and his employment

was terminated at the end of April 2012.

McMillen sued appellants in July 2012 alleging whistleblower and free speech

violations. McMillen contends that he was terminated and retaliated against because of a

memorandum that he prepared in June 2011. He prepared the memorandum at the direction of his

supervisor, Karen Nelson, who was OIG’s Chief Counsel. Nelson assigned McMillen the task of

researching whether there was legal authority to support or, conversely, prohibit HHSC’s ongoing

practice of accepting payments from Medicaid benefit recipients under a particular program. In the

memorandum, McMillen concluded that he “[did] not find a legal basis to justify HHSC/OIG’s

current practice of accepting repayments” and recommended that “HHSC/OIG cease accepting

them.”1 To support his conclusion, he cited a 1997 letter from the “U.S. Department of Health &

Human Services/Center for Medicaid and State Operations” to the “State Medicaid Director (of each

state)” and a class action suit in California. Nelson provided copies of the memorandum to OIG

deputies in September 2011. McMillen also gave a copy to OIG’s Deputy Inspector General of

1
The parties’ appellate briefs and exhibits submitted to the trial court under seal were
submitted under seal to this Court. Because McMillen prepared the June 2011 memorandum as an
attorney employed by HHSC, HHSC has asserted the attorney-client privilege. See Tex. R. Evid.
503 (lawyer-client privilege); In re XL Specialty Ins., 373 S.W.3d 46, 49 (Tex. 2012) (“Confidential
communications between client and counsel made to facilitate legal services are generally insulated
from disclosure.” (citation omitted)).

2
Internal Affairs and its Inspector General in December 2011 and to HHSC’s Executive

Commissioner in January 2012. OIG’s Internal Affairs Division conducted an investigation of

McMillen’s allegations and concluded that they were “unsubstantiated.”

Appellants filed a plea to the jurisdiction supported by the affidavit of Nelson. They

contended that McMillen was terminated for poor work performance and that the June 2011

memorandum was incomplete and failed to analyze the legal issues assigned to him by Nelson. As

to McMillen’s whistleblower claim, appellants contended that he had failed to invoke the trial

court’s jurisdiction because he had not alleged and could not allege a “good faith report” of a

“violation of law” to an “appropriate law enforcement authority.” See Tex. Gov’t Code § 554.002.

As to his free speech claim, appellants contended that McMillen had not alleged and could not

“allege an exercise of free speech for which he was the victim of retaliation.”

McMillen filed a response with evidence, including an affidavit by McMillen,

excerpts from the depositions of Nelson and Douglas Wilson, who was the Inspector General,

discovery responses, and a copy of pleadings from the California class action referenced in the

June 2011 memorandum.2 In that case, the plaintiffs alleged that the California Department of

Health Services was violating the federal prohibition in section 1396p of Title 42 of the United

States Code against the recovery of Medicaid benefits correctly paid. See 42 U.S.C. § 1396p(b)(1).3

2
In her deposition, Nelson testified about OIG generally, her supervision of McMillen
leading up to his termination, and the June 2011 memorandum. She testified that, after she received
the memorandum from McMillen, she informed him that it was incomplete and asked him to address
additional issues but that he did not revise the memorandum. Wilson also testified about OIG, its
Internal Affairs Division, and McMillen’s allegations.
3
Section 1396p(b)(1) states:

3
 In his affidavit, McMillen averred about his employment with OIG. He averred that

he was not terminated for poor work performance but because of the memorandum and “[his]

additional reports which offended [his] supervisors” and that he was not told that he was

inadequately performing his job duties before he made his “report” in the memorandum.4 He

identified section 1396p of Title 42 of the United States Code as the law “in [his] good faith belief”

that HHSC was violating “by improperly taking payment reimbursements from Medicaid recipients

for procedures validly and legally paid for by the federal government.” He also cited state statutes

governing HHSC to support his conclusion that “none of these [state] laws appears to allow HHSC

to accept reimbursements in the situation I was asked to investigate.”

No adjustment or recovery of any medical assistance correctly paid on behalf of an
individual under the State plan may be made, except that the State shall seek
adjustment or recovery of any medical assistance correctly paid on behalf of an
individual under the State plan in the case of the following individuals: [inapplicable
exceptions].

42 U.S.C. § 1396p(b)(1).
4
McMillen averred:

I was never told my job was in jeopardy or that I was providing inadequate legal
services (or not doing my job in any material sense) until after my reports were made
and after the defendants “needed” a reason to terminate my employment. I was doing
my job to the best of my ability and was never told that I had any serious deficiencies
or that my job was in jeopardy until after I made my report and after I began agitating
for it to be taken up the chain, properly investigated, and the practices that I believed
to be illegal (and still believe are illegal) stopped. . . .

It was, I believe, my not “letting this go” and making my report up the chain,
including to the Inspector General, the IAD, and the Commissioner himself that “got
me fired.”

4
 After a hearing, the trial court denied appellants’ plea to the jurisdiction. This

appeal followed.

ANALYSIS

Appellants raises three issues. They contend that the trial court erred by asserting

subject matter jurisdiction over McMillen’s whistleblower claim “because the pleadings and

evidence, taken as true did not establish the minimum jurisdictional requisites,” that the trial court

erred by asserting subject matter jurisdiction over McMillen’s free speech claim “because the

pleadings, taken as true, did not establish the minimum jurisdictional requisites,” and that the trial

court erred by assuming jurisdiction on the basis of attorney-client privileged evidence over the

client’s objections.

Standard of Review

We review a plea questioning the trial court’s subject matter jurisdiction de novo.

See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus first

on the plaintiff’s petition to determine whether the facts that were pled 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 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).

5
Whistleblower Claim

In their first issue, appellants contend that the trial court erred by asserting subject

matter jurisdiction over McMillen’s whistleblower claim “because the pleadings and evidence, taken

as true, did not establish the minimum jurisdictional requisites.” 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). Although the Whistleblower Act waives immunity from suit to

the extent a governmental entity is liable under its provisions, see Tex. Gov’t Code § 554.0035, the

claimant “must actually allege a violation of the Act for there to be a waiver from suit.” Lueck,

290 S.W.3d at 881. The elements of a whistleblower claim “are jurisdictional and may not be

waived.” University of Houston v. Barth, 403 S.W.3d 851, 853 (Tex. 2013) (per curiam).

“The standard for a ‘violation of [the Whistleblower Act]’ appears in section

554.002(a).” Lueck, 290 S.W.3d at 881. Section 554.002(a) provides that a governmental entity

“may not suspend or terminate the employment of, or take 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). Section 554.002(b) describes when “a report is made to an appropriate law

enforcement authority,” providing:

(b) In this section, 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

6
 (2) investigate or prosecute a violation of criminal law.

Id. § 554.002(b). For purposes of this appeal, a “law” means “a state or federal statute” or “a rule

adopted under a statute.” Id. § 554.001(1). Whether the recipient of the allegations is “an

appropriate law enforcement authority” under the Whistleblower Act is a question of law. Texas

Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

An employee who did not report to an “appropriate law enforcement authority” may

still have a viable whistleblower claim if he believed in good faith that he was reporting to an

“appropriate law enforcement authority.” See Tex. Gov’t Code § 554.002(b). For an employee to

satisfy the good faith requirement, he must have actually believed that the recipient of the report was

an “appropriate law enforcement authority” and his belief must have been “reasonable in light of the

employee’s training and experience.” Needham, 82 S.W.3d at 321. To satisfy the objective

component of the good faith requirement, a claimant is entitled to protection “if a reasonably prudent

employee in similar circumstances” would have held the claimant’s belief. Id. at 320.

Here, it is undisputed that McMillen was a “public employee,” that McMillen alleged

that the “violation of law” was by HHSC—the “employing governmental entity”—and that

HHSC—and not its Commissioner—is the proper party for McMillen’s Whistleblower claim under

section 554.002. See Tex. Gov’t Code §§ 554.001(4)–(5) (defining “public employee” and “state

governmental entity”), .002(a). The parties join issue with whether McMillen established the

elements of “a violation of law,” a report to an “appropriate law enforcement authority,” and a “good

faith” belief. See id. § 554.002. Because they are dispositive, we limit our analysis to appellants’

arguments that McMillen “did not report to any appropriate law enforcement authority and he could

7
not have reasonably believed that he did.” See Tex. R. App. P. 47.1 (appellate courts “must hand

down a written opinion that is as brief as practicable but that addresses every issue raised and

necessary to final disposition of the appeal”).

“[C]ritical to the determination” of whether the recipient of a report is an appropriate

law enforcement authority is the “particular law the public employee reported violated.” Needham,

82 S.W.3d at 320. As a threshold matter then, we must determine the “particular law” that McMillen

reported HHSC violated. See id. Although the Whistleblower Act does not require the employee

to “identify a specific law when making a report,” there must be “some law prohibiting the

complained-of conduct to give rise to a whistleblower claim.” Texas Dep’t of Criminal Justice

v. McElyea, 239 S.W.3d 842, 850 (Tex. App.—Austin 2007, pet. denied).

In the June 2011 memorandum, McMillen did not identify any law that he alleged was

being violated, but he cited to the class action litigation in California and a letter from the United

States Department of Health and Human Services. McMillen’s quoted excerpt from the letter,

however, did not include a reference to legal authority. As to the California class action, although

he did not identify the law in the memorandum, the law at issue in that case was section 1396p of

Title 42 of the United States Code, a federal civil Medicaid law. In his affidavit in support of his

response to the plea to the jurisdiction, McMillen also identified two sections of the Texas Human

Resources Code and the General Appropriations Act for the 2012-13 Biennium. See Tex. Hum. Res.

Code §§ 32.039 (addressing damages and penalties that HHSC may assess against applicants for

payment of health care services), .064 (addressing cost sharing provisions for recipients of medical

assistance); 82d Tex. Leg. R.S. (2011), at 211, para. 17. He averred that “none of these [state] laws

8
appears to allow HHSC to accept reimbursements in the situation I was asked to investigate.” On

appeal, McMillen argues that accepting payments under the program violated HHSC’s statutory

authority “because it is only authorized to accept items such as ‘damages and penalties’ for

fraudulent medical claims and collecting and appropriating cost sharing certain Medicaid revenues.”

See Public Util. Comm’n of Tex. v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001) (noting

“basic rule” that “a state administrative agency has only those powers that the Legislature expressly

confers upon it”).

The General Appropriations Act, however, is not a “law” that prohibited the

complained-of conduct to give rise to a whistleblower claim. See Tex. Gov’t Code § 554.001(1)

(defining “law” to mean “state or federal statute,” “ordinance of a local governmental entity,” or

“rule adopted under a statute or ordinance”); McElyea, 239 S.W.3d at 850 (requiring “some law

prohibiting the complained-of conduct to give rise to a whistleblower claim”). Paragraph 17 of the

General Appropriations Act for the 2012–13 Biennium states:

The Health and Human Services Commission is authorized to collect and is hereby
appropriated all cost sharing revenues generated by Medicaid clients as authorized
in Section 32.064 of the Human Resources Code. These revenues may include
enrollment fees, deductibles, coinsurance, and portions of the managed care plan
premiums.

Similarly, the sections from the Human Resources Code—examples of HHSC’s authority to monitor

and regulate the provision of health and human services in the state of Texas—do not prohibit the

conduct that McMillen addressed in the June 2011 memorandum, HHSC’s acceptance of payments

under a particular program.

9
 McMillen also has not alleged or identified a violation of criminal law by HHSC. See

Mullins v. Dallas Indep. Sch. Dist., 357 S.W.3d 182, 189 (Tex. App.—Dallas 2012, pet. denied)

(“Investigatory power may make a governmental entity an appropriate law enforcement authority for

purposes of the act only if the plaintiff has reported a violation of criminal law. . . . Furthermore,

the criminal conduct reported must be within the investigatory powers of the authority receiving the

plaintiff’s report or the plaintiff must have a good faith belief that the conduct was within the

investigatory powers of the authority to which he reported.”); see also Needham, 82 S.W.3d at 320

(analyzing section 554.002(b)(2) to determine whether the agency had authority to prosecute the

particular criminal violation being reported). Thus, we conclude that the only possible law that

McMillen reported that HHSC was violating was a federal civil Medicaid law. See Needham,

82 S.W.3d at 320.

The issue then becomes whether the recipients of McMillen’s memorandum—his

supervisor and other HHSC employees higher up the chain of command—were authorized to

“regulate under or enforce” this federal law. See Tex. Gov’t Code § 554.002(b)(1). We conclude

that they were not. As the Texas Supreme Court recently recognized, “only the United States

Secretary of Health and Human Services (HHS Secretary) can ‘regulate under’ or ‘enforce’

Medicare/Medicaid rules.” University of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680,

685 (Tex. 2013); see id. (noting that “42 U.S.C. § 1395hh(a) vests sole power in the HHS Secretary

to promulgate and enforce the Medicare/Medicaid rules”).

Further, the supreme court has explained that the “restrictive definition of

‘appropriate law enforcement authority’ requires that the reported-to entity be charged with more

10
than mere internal adherence to the law allegedly violated.” Texas A&M Univ.–Kingsville

v. Moreno, 399 S.W.3d 128, 129 (Tex. 2013) (per curiam); see Gentilello, 398 S.W.3d at 686

(“Authority of the entity to enforce legal requirements or regulate conduct within the entity itself is

insufficient to confer law-enforcement authority status.”). The recipient of the report must have

authority over third parties as to the law alleged to be violated and that authority must be

“free-standing regulatory, enforcement, or crime-fighting authority.” Gentilello, 398 S.W.3d at 682,

686; see Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 654, 657 (Tex. 2013) (holding trial

court properly granted plea to jurisdiction as to whistleblower claim and concluding “no evidence

that [reported-to] officials had authority to enforce the allegedly violated laws outside of the

institution itself, against third parties generally”); Moreno, 399 S.W.3d at 130 (explaining that

recipient of report must have authority “‘to enforce the law that was allegedly violated . . . against

third parties generally’” (quoting Gentilello, 398 S.W.3d at 686)). Guided by the supreme court’s

analysis, we conclude that the recipients of McMillen’s complaint—HHSC employees with internal

authority to comply with the federal civil Medicaid law—were not appropriate law enforcement

authorities as a matter of law. See Gentilello, 398 S.W.3d at 686; see also Needham, 82 S.W.3d at

318 (determining whether appropriate law enforcement authority as matter of law).

We turn then to whether McMillen’s pleadings and evidence, taken as true,

established that he had a good faith belief that he reported the alleged federal civil Medicaid law

violation to an appropriate law enforcement authority. McMillen urges that he had a good faith

belief that he was reaching out to an appropriate law enforcement authority because, as an employee,

he saw OIG and its Internal Affairs Division in action. To support his good faith belief, McMillen

11
points to OIG’s regulations, the websites of OIG and the Internal Affairs Division, and the Internal

Affairs Division’s decision to investigate his allegations and to designate materials confidential as

part of the investigation. See Tex. Gov’t Code § 531.1021 (providing materials to be designated

confidential); see also id. § 531.102 (describing responsibilities of OIG to include “investigation of

fraud, waste, and abuse in the provision and delivery of all health and human services in the state

. . . and the enforcement of state law relating to the provision of those services”); 1 Tex. Admin.

Code §§ 371.11 (Office of Inspector General, Purpose and Scope) (describing purpose and scope of

OIG), .1603 (describing OIG’s responsibilities and administrative enforcement authority).

Consistent with the applicable regulations, the websites describe the functions of OIG

and the Internal Affairs Division to include investigating complaints that “allege violations of

criminal law,” “complaints involving misconduct by agency employees,” and complaints involving

“retaliation against employees under the Whistleblower Act.” OIG states on its website that it is

authorized to “take enforcement action,” including issuing sanctions, “against providers and

recipients.” The Internal Affairs Division states on its website that it “performs investigation

accountability of health and human services resources, programs, employees, and contractors.”

The investigative and enforcement authority of OIG and the Internal Affairs Division

against third parties, however, as to the “provision and delivery” of health services in the state and

the “enforcement of state law relating to the provision of those services,” do not support McMillen’s

good faith belief as to the law at issue, a federal law. See Tex. Gov’t Code §§ 531.1011(10)

(defining “provider”), .102(a); Gentilello, 398 S.W.3d at 685 (noting that “all governmental bodies

must themselves adhere to various statutes and regulations, but such compliance does not equate to

12
the authority to ‘regulate under or enforce’ those provisions” and that “Whistleblower Act speaks

to an authority statutorily empowered to regulate under or enforce the actual law allegedly violated”);

see also Barth, 403 S.W.3d at 857 (noting that claimant must have “objective good-faith belief that

he was reporting violations of law . . . to an entity that could have enforced, investigated, or

prosecuted similar violations against third parties—not just an entity that can internally discipline

its own employees for an alleged violation”); Moreno, 399 S.W.3d at 130 (“‘A whistleblower cannot

reasonably believe his supervisor is an appropriate law enforcement authority if the supervisor’s

power extends no further than ensuring the governmental body itself complies with the law.’”

(quoting Gentilello, 398 S.W.3d at 689)); Gentilello, 398 S.W.3d at 687 (reaffirming that “lodging

an internal complaint to an authority whom one understands to be only charged with internal

compliance, even including investigating and punishing noncompliance, is jurisdictionally

insufficient under the Whistleblower Act”); City of Elsa v. Gonzalez, 325 S.W.3d 622, 628 (Tex.

2010) (per curiam) (noting that plaintiff “failed to address or point to evidence that he had a good

faith belief that the city council had authority under the Open Meetings Act to regulate, enforce,

prosecute, or investigate its own alleged violation of the Act apart from its inherent authority to

simply decide not to meet,” noting that “being required to comply with the Open Meetings Act does

not equate to having authority to ‘regulate under or enforce’ those provisions as to itself,” and

holding that city council was not appropriate law enforcement authority). We also decline to place

significance on the internal investigation conducted by the Internal Affairs Division as to McMillen’s

allegations. See Gentilello, 398 S.W.3d at 688 (concluding “stock anti-retaliation policies” as to

report by employee of compliance problems with Medicare/Medicaid laws reflected university’s

13
“commitment to internal compliance” and that university “would abide by all directives from the

federal government concerning Medicare/Medicaid laws, nothing more”).

McMillen focuses on the absence of the phrase “alleged to be violated in the report”

in subsection (b)(2) of section 554.002 of the Whistleblower Act to support his position that the

authority of OIG and the Internal Affairs Division to investigate and prosecute violations of criminal

law independently places them within the statutory definition of an “appropriate law enforcement

authority.” See Tex. Gov’t Code § 554.002(b)(2). But, as noted above, McMillen has not alleged

a violation of criminal law. See Needham, 82 S.W.3d at 320; Mullins, 357 S.W.3d at 189. We also

decline to adopt McMillen’s interpretation of subsection (b)(2) that would make every administrative

agency that has authority to investigate and prosecute a criminal offense an “appropriate law

enforcement authority” under the Whistleblower Act regardless of the law alleged to be violated.

See Needham, 82 S.W.3d at 319 (“Under the statutory definition, it is clearly not enough that a

governmental entity has general authority to regulate, enforce, investigate, or prosecute.”); Mullins,

357 S.W.3d at 190 (concluding that investigative authority that included coordinated activities with

federal law enforcement agencies not “broad enough to include the power to investigate alleged

criminal violations of federal environmental laws”).

Given McMillen’s training as an attorney with over twenty years of experience, we

conclude that he failed to establish that he had an objectively reasonable belief that a recipient of his

alleged reports was an “appropriate law enforcement authority.” See Barth, 403 S.W.3d at 858

(holding that plaintiff failed to meet “objective component of the good-faith test” “given [plaintiff]’s

legal training and experience as a practicing attorney”); Gentilello, 398 S.W.3d at 689 (concluding

14
that “a whistleblower cannot reasonably believe his supervisor is an appropriate law-enforcement

authority if the supervisor’s power extends no further than ensuring the governmental body itself

complies with the law”). A “reasonably prudent employee in similar circumstances” to

McMillen would not have believed that the reported-to individuals were appropriate law

enforcement authorities as to an alleged violation of federal civil Medicaid law. See Needham,

82 S.W.3d at 320; see also Nieto v. Permian Basin Cmty. Ctrs. for MHMR, No. 11-13-00012-CV,

2014 Tex. App. LEXIS 1003, at *11 (Tex. App.—Eastland Jan. 30, 2014, no pet.) (mem. op.) (“We

cannot conclude that a 29-year-old with an undergraduate degree would believe that the executive

director or the compliance officer at PBCC regulated or enforced Medicaid/Medicare rules outside

of PBCC.”). Thus, we conclude that the trial court erred by denying appellants’ plea to the

jurisdiction as to McMillen’s Whistleblower claim and sustain their first issue.5

5
To support his position that he reported to an appropriate law enforcement authority,
McMillen cites City of Houston v. Levingston, 221 S.W.3d 204 (Tex. App.—Houston [1st Dist.]
2006, no pet.), and Texas Department of Human Services v. Okoli, 317 S.W.3d 800 (Tex.
App.—Houston [1st Dist.] 2010), rev’d, 440 S.W.3d 611 (Tex. 2014). The supreme court reversed
the decision of the court of appeals in Okoli, concluding that the employee “neither reported the
alleged violations he witnessed to an appropriate law enforcement authority nor in good faith could
have believed he had.” 440 S.W.3d at 617. Thus, that case is not helpful to McMillen. Further, in
contrast with McMillen’s allegations, the plaintiff in Levingston alleged violations of criminal laws
and the reported-to governmental entity was charged with enforcing the laws at issue. See
Levingston, 221 S.W.3d at 219, 221–24 (reports included violations of criminal law and evidence
that city department charged with investigating or enforcing laws at issue). The case cited by
McMillen in a post-submission letter brief similarly concerned allegations of criminal law reported
within a division of the Office of the Attorney General. See Office of the Attorney Gen. v.
Weatherspoon, 435 S.W.3d 844, 851 (Tex. App.—Dallas 2014, pet. filed) (report of criminal
conduct within OAG was to appropriate law enforcement authority). Thus, we find those cases
factually distinguishable and McMillen’s reliance on them misplaced.

15
Free Speech Claim

In their second issue, appellants contend that the trial court erred by asserting subject

matter jurisdiction over McMillen’s Texas Constitutional free speech claim “because the pleadings,

taken as true, did not establish the minimum jurisdictional requisites.” They contend that they are

immune from suit as to McMillen’s free speech claim because article I, section 8 of the Texas

Constitution does not create a private right of action for damages. McMillen agrees that he cannot

assert a private action for damages under his free speech claim. See Tex. Const. art. I, § 8; Beaumont

v. Bouillion, 896 S.W.2d 143, 147–49 (Tex. 1999) (holding no private right of action for damages

arising under free speech section of Texas Constitution). He also states that the proper defendant

for his free speech claim is the Commissioner, in his official capacity, and not HHSC. See City of

El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Within these confines, we address

appellants’ challenge to McMillen’s free speech claim.

The parties agree that the elements of a retaliation claim by a public employee based

on protected free speech under article I, section 8 of the Texas Constitution are: “(1) speech by a

public employee involving a matter of public concern; (2) the employee’s interest in commenting

on a matter of public concern outweighs the employer’s interest in efficiency; (3) an adverse

employment action; and (4) the speech motivated the adverse employment action.” Nairn v. Killeen

Indep. Sch. Dist., 366 S.W.3d 229, 245 (Tex. App.—El Paso 2012, no pet.) (elements of First

Amendment retaliation claim); see Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (analyzing

Article I, section 8 claim pursuant to First Amendment jurisprudence under an assumption that the

“concerns are congruent” absent any argument otherwise).

16
 Because it is dispositive, we limit our analysis to appellants’ argument that McMillen

did not establish the first element of his free speech claim. See Tex. R. App. P. 47.1. Appellants

argue that, to the extent McMillen seeks equitable relief, he was not speaking out on a matter of

public concern because his internal communications subject to the attorney-client privilege were

made in his capacity as a public employee and not as a private citizen.

We are informed by the Supreme Court’s analysis in Garcetti v. Ceballos,

547 U.S. 410, 418–21 (2006). In that case, the Supreme Court held that an attorney who wrote a

memorandum “pursuant to his official duties” was not speaking as a private citizen for free speech

purposes and that “the Constitution does not insulate [this type of] communications from employer

discipline.” Id. at 421. The Supreme Court explained: “Restricting speech that owes its existence

to a public employee’s professional responsibilities does not infringe any liberties the employee

might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what

the employer itself has commissioned or created.” Id. at 421–22; see also Davis v. McKinney,

518 F.3d 304, 312–13 (5th Cir. 2008) (discussing “threshold layer to previous analysis” added by

Garcetti that shifted focus “from the content of the speech to the role the speaker occupied when he

said it”).

McMillen urges that, although his statements in his memorandum may not be

protected speech because he prepared the memorandum as part of his job duties, his job duties did

not include his “subsequent” reports to “higher and higher levels.” But McMillen’s “speech”

directed internally owed its existence to his professional responsibilities to provide legal advice to

his employer, HHSC. See McKinney, 518 F.3d at 313 (noting that “[c]ases from other circuits are

17
consistent in holding that when a public employee raises complaints or concerns up the chain of

command at his workplace about his job duties, that speech is undertaken in the course of performing

his job” as compared with public employee who “takes his job concerns to persons outside the work

place in addition to raising them up the chain of command at his workplace” (citations omitted)).

Similar to the speech at issue in Garcetti, McMillen’s “speech” was made in response to his

supervisor’s assignment and as part of his job duties as an attorney conducting legal research and

providing legal analysis to his employer.6 Garcetti, 547 U.S. at 421 (“The controlling factor [was]

that [the employee]’s expressions were made pursuant to his duties as a calendar deputy.”). Guided

by the Supreme Court’s analysis in Garcetti, we conclude that the trial court erred by denying

appellants’ plea to the jurisdiction as to McMillen’s free speech claim and sustain their second issue.7

CONCLUSION

For these reasons, we reverse the trial court’s order that denied appellants’ plea to the

jurisdiction and dismiss McMillen’s claims for lack of subject matter jurisdiction.

6
For example, in a letter to HHSC’s Executive Commissioner that accompanied a copy of
the June 2011 memorandum, McMillen expressly stated that he raised his concerns about the
program at issue because it was one of his “responsibilities as an attorney who represents an
organization,” citing rule 1.12 of the Texas Disciplinary Rules of Professional Conduct. See Tex.
Disciplinary Rules Prof’l Conduct R. 1.12 (addressing representation of organization as client).
7
Because we have concluded that the trial court did not have jurisdiction to consider
McMillen’s whistleblower and free speech claims, we do not reach appellants’ third issue. See Tex.
R. App. P. 47.1.

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 __________________________________________

Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Puryear and Goodwin

Reversed and Dismissed

Filed: January 8, 2015

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