Burnet County Sheriff's Department and Burnet County, Texas v. Zarina Carlisle

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00398-CV

Burnet County Sheriff's Department and Burnet County, Texas, Appellants

Zarina Carlisle, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 99-13922, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

Appellee Zarina Carlisle brought an action against Burnet County Sheriff's Department and Burnet County, Texas (collectively "Burnet County") for wrongful termination under the Texas Whistleblower Act. See Tex. Gov't Code Ann. § 554.002 (West 1994 & Supp. 2001) & § 554.0035 (West Supp. 2001). Burnet County brings this interlocutory appeal contending that the district court erroneously denied its plea to the jurisdiction.⁽¹⁾ Raising a single issue, Burnet County argues that Carlisle has not alleged conduct constituting a "violation of law" sufficient to waive Burnet County's sovereign immunity under the Whistleblower Act. We reverse the district court's denial of Burnet County's plea to the jurisdiction.

Facts and Procedural Background

From March 1998 to November 1999, Carlisle worked as a senior correctional officer at the Burnet County Jail.⁽²⁾ On February 17, 1999, an incident occurred between Carlisle and her immediate supervisor, Captain Wendell Gilmore. Carlisle asked Gilmore whether an inmate held in the holding cell of the jail was entitled to a visit. Gilmore responded, "Who the hell authorized the visit? Find out what damn officer did it." As Carlisle began to review a list of inmates, Gilmore exclaimed, "God Damn it, I just said do it! Let him have the visit!"

Carlisle alleged that over the next few months she and others observed Gilmore "curse" and "bad mouth others." In mid-September 1999, an inmate complained to Carlisle that Gilmore had cursed at him and at the jail cook. On September 21, 1999, Carlisle reported Gilmore's conduct to Sheriff Joe Pollack. On October 28 and 29, Carlisle received two written warnings from Pollack allegedly when she failed to enter commitment orders as directed and for telling another officer, "Don't sweat it." In the second warning, she was advised that any further violation could result in her termination. On November 8, 1999, Captain Gilmore asked for Carlisle's resignation. Carlisle refused and was fired. The next day, Carlisle asked Sheriff Pollack to provide the reasons for her termination. On November 12, Carlisle delivered a letter to County Judge Martin McLean complaining that she was being retaliated against for her report of Gilmore's "unprofessional conduct."⁽³⁾ In her petition, Carlisle did not allege that she reported a violation of law to Sheriff Pollack or Judge McLean.

Carlisle filed a whistleblower suit against Burnet County, contending that the sheriff fired her in retaliation for reporting a violation of law. In her original petition,⁽⁴⁾ Carlisle alleged that Gilmore's conduct violated a rule of conduct in the Burnet County personnel policies. She

further alleged that his conduct violated the professionalism standards of the Texas Commission on Law Enforcement Officer Standards and Education ("TCLEOSE standards") and that these "Rule of Conduct violations are sufficient to constitute a 'violation of law' under the Whistleblower Act."

In her sixth amended petition, Carlisle alleged that, in addition to violating the county's personnel policies, Gilmore's conduct constituted disorderly conduct. She also asserted that, because she was terminated for reporting a "violation of a rule of conduct or law," Burnet County waived its sovereign immunity. Burnet County filed a plea to the jurisdiction, arguing that its sovereign immunity from suit deprived the trial court of jurisdiction. The trial court denied the plea. On appeal, Burnet County challenges the denial of its plea to the jurisdiction.

Standard of Review

Because subject matter jurisdiction presents a legal question, we review the district

court's ruling on the plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). A plea to the jurisdiction contests the district court's authority to consider the subject matter of the cause of action. Bland Indep. Sch. Dist. v. Blue, 44 Tex. Sup. Ct. J. 125, 2000 Tex. LEXIS 106, at *17 (Dec. 7, 2000); City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.--Austin 1998, no pet.). We are mindful of our limited role here: Our task is to take as true the facts pleaded in the petition, and to determine whether those facts support jurisdiction in the trial court.⁽⁵⁾ Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); University of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex. App.--Houston [1st Dist.] 1999, pet. dism'd); Curbo v. State, 998 S.W.2d 337, 341 (Tex. App.--Austin 1999, no pet.); Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.--Austin 1994, writ denied). The plaintiff must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Texas Ass'n of Bus., 852 S.W.2d at 446. The allegations in the petition are to be construed in favor of the plaintiff. Id.; Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989).

DISCUSSION

Sovereign Immunity

Because governmental immunity from suit defeats a trial court's subject matter jurisdiction, it is properly asserted in a plea to the jurisdiction. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999); Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997); Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970).⁽⁶⁾ The party suing the governmental entity must establish the state's consent, which may be alleged either by reference to a statute or to express legislative permission. Jones, 8 S.W.3d at 637; Missouri Pac. R.R. Co., 453 S.W.2d at 814. "The courts of our state require clear and unambiguous legislative expression before they will hold that sovereign immunity has been waived." Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000).

The Whistleblower Act contains an express waiver of the state's sovereign immunity. Tex. Gov't Code Ann. § 554.0035 ("Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter."). In effect, this waiver permits a district court to exercise jurisdiction once a plaintiff sufficiently pleads a claim under the Whistleblower Act. See Federal Sign, 951 S.W.2d at 405; Hohman, 6 S.W.3d at 772. Relying upon the express waiver set forth in the statute, Carlisle asserts that, once she alleged in her petition that she reported conduct violative of the county's personnel policies, Burnet County waived its sovereign immunity. The legislative imposition of liability upon governmental entities is delimited, however, by sections 554.001 and 554.002 of the Whistleblower Act itself, which defines the conduct for which immunity is waived. Tex. Gov't Code Ann. §§ 554.001, .002 (West 1994 & Supp. 2001). Only causes of action and remedies authorized by the statute are permitted. Cf. City of LaPorte v. Barfield, 898 S.W.2d 288, 299 (Tex. 1995). Where immunity has been expressly waived by the Legislature, the court must determine the scope of the waiver from the language of the statute. Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989). The issue presented, then, is whether the factual allegations in Carlisle's petition state a cause of action under the Whistleblower Act.

Although Carlisle is not clear as to the wrongful acts committed, her petition alleges that she was an employee of Burnet County and that she was terminated because she reported Gilmore's use of profanity. Specifically, she alleges that "on or about September 21, 1999, Plaintiff spoke with Sheriff Pollock about this unprofessional conduct by Gilmore."⁽⁷⁾

Burnet County contends that the trial court erred in denying its plea to the jurisdiction because Carlisle failed to sufficiently allege that she was terminated for reporting a "violation of law" as that term is defined by the Whistleblower Act. In her sixth amended petition, Carlisle alleges that Gilmore's cursing violated two laws: (i) a rule of conduct outlined in the county's personnel policies and (ii) the disorderly conduct statute of the Texas Penal Code. See Tex. Penal Code Ann. § 42.01 (West 1994 & Supp. 2001). Burnet County argues that, however they may be characterized, violations of personnel policies do not constitute "violations of law" under the Whistleblower Act. Because Carlisle did not, as a matter of law, report a "violation of law," as required by the statute, it necessarily follows, and we hold, that she failed to invoke the district court's jurisdiction.

The Texas Whistleblower Act

The Whistleblower Act prohibits a state or local governmental entity from suspending or terminating the employment of a public employee who "in good faith reports a violation of law by the employing entity or another public employee to an appropriate law enforcement authority." Tex. Gov't Code Ann. § 554.002(a). The Whistleblower Act "protects public employees who attempt to report illegal activity." Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). The Act "is designed to enhance openness in government and compel the government's compliance with the law by protecting those who inform authorities of wrongdoing." Castaneda v. Texas Dep't of Agric., 831 S.W.2d 501, 503 (Tex. App.--Corpus Christi 1992, writ denied). In considering the scope of the Act, this court has recognized that the Whistleblower Act has been invoked on behalf of "public employees who are fired in retaliation for reporting their employers' violations of law that are detrimental to the public good or society in general." Stinnett v. Williamson County Sheriff's Dep't, 858 S.W.2d 573, 575 (Tex. App.--Austin 1993, writ denied) (emphasis omitted) (citing Johnston v. Del Mar Distrib. Co., 776 S.W.2d 768, 772 (Tex. App.--Corpus Christi 1989, writ denied)). As a remedial statute, we construe the Act liberally. Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275, 1281 (5th Cir. 1991).

The entirety of the conduct complained of stems from Carlisle's encounter with Gilmore over the jail visitation policy. Although she alleges additional instances of "cursing" and "bad-mouthing," she does not set forth additional facts. The only facts before us then that may form the basis of the whistleblowing cause of action are those related to the verbal exchange over the visitation policy. We must determine whether Carlisle alleges conduct that is actionable under the Whistleblower Act.

The cause of action created in the Whistleblower Act is purely statutory. It creates a right and provides a remedy unknown to the common law of Texas. Hart, 917 S.W.2d at 782; City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex. App.--Austin 1996, writ denied). To prevail on her claim under the Act, Carlisle must allege the existence of each of the following elements: (1) she is a public employee; (2) she acted in good faith in making a report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) she suffered retaliation as a result of making the report. See Tex. Gov't Code Ann. § 554.002(a); Heim, 932 S.W.2d at 290. Carlisle properly alleged that she was a public employee, that she acted in good faith in making the report,⁽⁸⁾ that she made reports to a law enforcement authority, and that she was terminated in retaliation for her report. By its plea to the jurisdiction, Burnet County contends that Carlisle failed to allege that the report involved a "violation of law" sufficient to invoke the trial court's jurisdiction under the Whistleblower Act. We agree with Burnet County's position.

The Whistleblower Act defines "law" as: "(A) a state or federal statute; (B) an ordinance of a local governmental entity; or (C) a rule adopted under a statute or ordinance." Tex. Gov't Code Ann. § 554.001. The phrase "reports a violation of law" has been interpreted broadly. It includes "any disclosure of information regarding a public servant's employer tending to directly or circumstantially prove the substance of a violation of criminal or civil law, the State or Federal Constitution, statutes, administrative rules or regulations." Davis v. Ector County, 40 F.3d 777, 785 (5th Cir. 1994); Castaneda, 831 S.W.2d at 503-04; accord Heim, 932 S.W.2d at 291 n.5.

Relying on our decision in Travis County v. Colunga, Carlisle contends that, by reporting a violation of a rule of the Burnet County personnel policies, she satisfied the pleading requirements of the Whistleblower Act because the rule is "ground in law."⁽⁹⁾ See Travis County v. Colunga, 753 S.W.2d 716, 719 (Tex. App.--Austin 1988, writ denied). In Colunga, a county employee reported to her supervisors that county employees were not taking proper safety precautions in their use and storage of pesticides and herbicides on public playgrounds. Id. at 717. The sole issue on appeal was whether her report of the various violations to a county commissioner was made to the "appropriate law enforcement authority," a term not defined in the statute. Id. at 718. In considering the breadth of the Act's application to the various public officers and bodies with authority to enforce the Texas Agriculture Code, this Court interpreted the phrase broadly, holding that the Commissioners Court of Travis County was an "appropriate law enforcement authority" because, as a matter of law, it had the power and duty to inquire into the lawfulness of the handling of pesticides and herbicides in question and to stop any unlawful conduct. Id. at 719-20. Because the Legislature had failed to define "appropriate law enforcement authority," we were called upon to construe the phrase. Id. at 718.

In Colunga, the plaintiff alleged violations of various statutes as well as rules promulgated by the Texas Department of Agriculture. Id. at 717. We reasoned in dicta that the phrase "violations of law" was intended "to include the violation of rules of conduct prescribed by an official authority, whether the violation carries a civil or criminal sanction." Id. at 719.

Here, Carlisle argues that she reported a violation of a "law," because Gilmore violated a rule of conduct that "was ground in and supported by law." Carlisle identifies this "rule" specifically as section 2.01 of the "Personnel Policies for the County of Burnet," which reads as follows:

The County of Burnet is a public tax-supported organization. Its employees must adhere to high standards of public service that emphasize professionalism, courtesy and avoidance of even the appearance of illegal or unethical conduct. Employees are expected . . . to maintain good moral conduct, and to do their part in maintaining good relationships with the public, with other government employees and officials, with their supervisors, and with fellow employees.⁽¹⁰⁾

Carlisle contends that this personnel policy was promulgated "under a statute," namely, a standard established by the Texas Commission on Law Enforcement Officer Standards and Education ("the Commission"). We are not convinced by this argument.

Unlike the undefined phrase "appropriate law enforcement authority," the Legislature saw fit to define the types of "laws" that would fall within the Act. That the phrase at issue has been defined broadly does not mean that its meaning is limitless. Courts considering the issue have uniformly held that the definition of "law" in section 554.001 does not include violations of internal policy unless promulgated pursuant to statute or ordinance. Harris County Precinct Four Constable Dep't v. Grabowski, 922 S.W.2d 954, 955 (Tex. 1996) (violation of internal policy insufficient); Ruiz v. City of San Antonio, 966 S.W.2d 128, 130 (Tex. App.--Austin 1998, no pet.).

In Ruiz v. City of San Antonio, Ramon Ruiz sued his employer, the City of San Antonio, alleging that he was suspended in retaliation for reporting violations of the law by police officers. Ruiz, 966 S.W.2d at 129. In reversing the trial court's grant of summary judgment in favor of the City, we reasoned that while the Act does not protect a report of conduct that only violates an internal policy manual, Ruiz had alleged that the reported conduct violated the law, including theft, stealing, and criminal conspiracy. Id. at 130. The rationale we adopted in Ruiz is of no avail to Carlisle here. Unlike Ruiz, where the plaintiff "clearly alleged the reported conduct violated a criminal statute," Carlisle alleged only that she reported "unprofessional conduct," which resulted in her termination. Id. at 131. In enacting the Whistleblower Act, it was not the Legislature's "intent to protect miscellaneous complaints and discussions with fellow workers." City of Dallas v. Moreau, 697 S.W.2d 472, 475 (Tex. App.--Dallas 1985, no writ).

The TCLEOSE standard that Gilmore is alleged to have violated provides, "'Professional Attitude' means living by the rules. In the correctional setting rules are very important. Officers must encourage respect for the rules by following them personally." In her petition, Carlisle alleges that "[t]his standard was promulgated pursuant to and under the authority of the Government Code in . . . Chapter 1701 of the Texas Occupation Code." The Legislature has authorized the Commission to "establish minimum standards relating to competence and reliability, including educational, training, physical, mental, and moral standards, for licensing as an officer, county jailer, or public security officer." Tex. Occ. Code Ann. § 1701.151(2) (West 2001); Dixon v. McMullen, 527 F. Supp. 711, 715 (N.D. Tex. 1981) (recognizing the scope of the Commission's rulemaking authority as relating to "minimum . . . standards for admission to employment and certification"). To the extent that the County promulgates rules relating to eligibility for employment and the certification of officers, county jailers, or public security officers, the standards may specify minimum standards for county employees. See Tex. Occ. Code Ann. § 1701.003(a)(1) (West 2001) (stating that "[e]xcept as expressly provided by this chapter, this chapter does not . . . limit the powers or duties of a municipality or county"). Because the personnel policy that Carlisle claims was violated does not address admission to employment or the certification of an officer, a county jailer, or a public security officer, or reference the standards in any manner, we conclude that it was not promulgated under the standards. See Rodriguez v. Laredo Indep. Sch. Dist., 82 F. Supp. 2d 679, 684 (S.D. Tex. 2000). Carlisle alleges further that this policy was grounded and based in law, "by approval of the County Sheriff, of these County Commissioner approved policies promulgated pursuant to or under the authority of Texas Local Government Code §§ 157.021(b) and 157.902, as these statutes have been construed by case law, including City of Galveston v. Posnainsky, 62 Tex. 118 (1884) and Renfro v. Shropshire, 566 S.W.2d 688 (Tex. App.--Eastland 1978, writ ref'd n.r.e.)." Section 157.021(b) relates to compensation for overtime and compensatory time for certain county employees. Tex. Loc. Gov't Code Ann. § 157.021(b) (West 1999). Section 157.902, entitled "Personnel Rules Applying to Juvenile and Probation Officers, Court Reporters, and County Auditor's Office in Counties of 500,000 or More," addresses rules relating to "hours of work; vacations; holidays; sick leave; deductions for absences; retirement; medical care; hospitalization; and compensation, accident, hospital, and disability insurance." Id. § 157.902(b)(2). Neither statute is relevant to the personnel policies at issue here. Nor do the cases cited relate to the referenced statutes. We fail to see how either section of the Texas Local Government Code provides a basis in law for the county's personnel policy at issue.

We conclude that Carlisle's petition fails to allege that the county's personnel policy was adopted under an ordinance or a statute. Carlisle's own recitation of the county policy also fails to allege the existence of a civil or criminal sanction for the violation of the policy. See Colunga, 753 S.W.2d at 719. To hold that such an internal policy was a "law" for purposes of the Whistleblower Act would render meaningless the text defining the phrase. We reject Carlisle's argument that the county's personnel policy constitutes a "law" as contemplated by the Whistleblower Act.

By her own recitation of the facts, Carlisle reported a violation of internal personnel policies. She argues on appeal that because the rule of conduct is grounded in law, it satisfies the pleading requirement that she report a violation of law. Here, the only report alleged is a violation of a rule of conduct. The facts alleged do not suggest otherwise. To hold, as Carlisle would have us do, that Gilmore's rude behavior is actionable under the Whistleblower Act would result in a lawsuit or threatened lawsuit over every jot or tittle of every rule or policy of a governmental entity. Because many governmental offices are honeycombed with rules of professionalism, conduct, and decorum, which may be aspirational in nature, in the absence of proper pleading, we may not presume that they are promulgated pursuant to statute.

In her most recent amended petition, Carlisle alleges that she reported a "violation of law" because Gilmore's conduct constituted disorderly conduct under section 42.01 of the Texas Penal Code. See Tex. Penal Code Ann. § 42.01(a)(1), (4). The amended petition does not state any additional facts to support the allegation.

The Texas Penal Code defines the offense of disorderly conduct as follows:

(a) A person commits an offense if he intentionally or knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of peace;

. . .

(4) abuses or threatens a person in a public place in an obviously offensive manner;

Id. Texas courts have uniformly held that section 42.01 applies to "fighting" words. Jimmerson v. State, 561 S.W.2d 5, 7 (Tex. Crim. App. 1978) (holding that section 42.01(a)(4), by implication, applies only to fighting words); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 785 (Tex. App.--El Paso 1996, writ denied) (holding that section 42.01(a)(1) applies only to fighting words); Ross v. State, 802 S.W.2d 308, 314-15 (Tex. App.--Dallas 1990, no pet.); Estes v. State, 660 S.W.2d 873, 875 (Tex. App.--Fort Worth 1983, pet. ref'd) (holding that section 42.01(a)(1) and (2) apply only to fighting words). Fighting words are those words that "by their very utterance tend to incite an immediate breach of the peace." Duran, 921 S.W.2d at 785 (citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). The concept "breach of the peace" has been defined as an act that disturbs or threatens to disturb "the tranquility enjoyed by the citizens" and includes actual or threatened violence as an essential element. Woods v. State, 213 S.W.2d 685, 687 (Tex. Crim. App. 1948); Head v. State, 96 S.W.2d 981, 982 (Tex. Crim. App. 1936).

Carlisle alleges only that "the Texas Penal Code § 42.01[(a)(1), (4)], was, by the Plaintiff, in good faith believed to have been violated by Capt. Gilmore . . . ." Carlisle does not allege that Gilmore's language, by its very utterance, tended to incite an immediate breach of peace. While we accept a plaintiff's factual allegations as true in a jurisdictional challenge, we need not accept as true the legal or factual conclusions that a plaintiff draws from the facts pleaded. Firemen's Ins. Co. v. Board of Regents of the Univ. of Tex. Sys., 909 S.W.2d 540, 542 (Tex. App.--Austin 1995, writ denied). Because Carlisle's factual allegations do not satisfy the barest elements of the offense, we conclude that Carlisle has not pleaded facts sufficient to invoke the court's jurisdiction and thus to waive sovereign immunity.

Absent a violation of law as defined by the Whistleblower Act, a court is not the appropriate forum in which to review the wisdom of a personnel decision of a governmental entity. As enacted, the Act imposes a balance in the law, protecting the public as a whole as well as the whistleblower; government offices could not function if every employment decision--or utterance of profanity--became a whistleblower lawsuit. We decline to conclude that the Legislature intended for every vulgarity or profanity uttered in a jail setting to be actionable. While profane swearing may offend the sensibilities of co-workers, under the facts as alleged, it can hardly be the type of breach of public trust envisioned by the Legislature when it enacted the Whistleblower Act. The Whistleblower Act was not intended to be a vehicle for employee grievances that do not meet the minimal pleading requirements of the statute.

Because Carlisle has failed to plead a cause of action under the Whistleblower Act sufficient to invoke the Act's waiver of sovereign immunity, we reverse the district court's judgment denying Burnet County's plea to the jurisdiction. Accordingly, we sustain Burnet County's sole issue on appeal.

CONCLUSION

We conclude that Carlisle did not allege facts sufficient to affirmatively demonstrate the district court's jurisdiction under the Whistleblower Act. Having sustained Burnet County's issue on appeal, we reverse the district court's judgment denying Burnet County's plea to the jurisdiction and render judgment dismissing this case for want of jurisdiction.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Reversed and Rendered

Filed: January 11, 2001

Do Not Publish

1. We have jurisdiction over Burnet County's appeal pursuant to section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, which allows a governmental unit to appeal an order denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2001).

2. Unless otherwise specified, our recitation of the facts is taken from Carlisle's sixth amended petition. For purposes of a plea to the jurisdiction, we take the factual allegations in the plaintiff's petition as true. Bland Indep. Sch. Dist. v. Blue, 44 Tex. Sup. Ct. J. 125, 2000 Tex. LEXIS 106, at *19 (Dec. 7, 2000); Brannon v. Pacific Employers Ins. Co., 224 S.W.2d 466, 469 (Tex. 1949). Therefore, for purposes of this appeal, the material facts are undisputed.

3. Neither the warnings nor the letter to Judge McLean are appended to the petition or appear in the record.

4. Carlisle's original petition was filed on November 29, 1999. In its original answer and first amended answer, Burnet County filed special exceptions, asserting that Carlisle's petition failed to state a cause of action under the Whistleblower Act. On May 8, 2000, Burnet County filed a plea to the jurisdiction and a motion for summary judgment. On May 17, 2000, Carlisle filed her sixth amended petition. On June 8, 2000, the district court issued orders, denying Burnet County's motion for summary judgment and its plea to the jurisdiction.

5. To successfully challenge the trial court's jurisdiction to hear the subject matter of the plaintiff's claim at the pretrial stage, the defendant must establish either: (1) that the plaintiff's pleadings, taken as true, affirmatively establish that the trial court lacks subject matter jurisdiction over the suit; or (2) that the plaintiff pled fraudulently or in bad faith with the purpose of conferring jurisdiction, where under the true facts of the case the trial court would not have jurisdiction. Curbo v. State, 998 S.W.2d 337, 342 (Tex. App.--Austin 1999, no pet.). Because we conclude that appellant's petition on its face fails to state a claim sufficient to invoke the trial court's jurisdiction under the Whistleblower Act, we do not address Burnet County's argument that the allegations were also pled in bad faith for the purpose of acquiring jurisdiction. See Denton County v. Howard, 22 S.W.3d 113, 118-19 (Tex. App.--Fort Worth 2000, no pet.).

6. When considering a plea to the jurisdiction, a court may review evidence beyond the face of the pleadings "when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist., 2000 Tex. LEXIS at *22. A plea to the jurisdiction "does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction." Id. at *18. The absence of subject matter jurisdiction may also be raised in a motion for summary judgment, which permits consideration of the merits of a case. Id. at *17-18. As whistleblower suits tend to present questions that require a review of the evidence, a challenge is more properly raised in a motion for summary judgment. See, e.g., Donlevy v. City of Colony, 8 S.W.3d 754, 758 (Tex. App.--Fort Worth 1999, no pet.) (affirming grant of summary judgment after concluding plaintiff did not believe in good faith that she had reported a violation of law); Ruiz v. City of San Antonio, 966 S.W.2d 128, 132 (Tex. App.--Austin 1998, no pet.) (finding genuine issue of material fact which precluded summary judgment); Castaneda v. Texas Dep't of Agric., 831 S.W.2d 501, 505 (Tex. App.--Corpus Christi 1992, writ denied) (reversing grant of summary judgment because the governmental entity failed to prove no causal link existed between the discharge and the report).

7. Carlisle does not allege more specifically the precise report she made to Sheriff Pollack or Judge McLean.

8. In the context of the Whistleblower Act, "good faith" means that (1) the employee believed the conduct reported was a violation of law and (2) the employee's belief was reasonable in light of the employee's training and experience. Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). For purposes of pleading this element, it is sufficient if the plaintiff alleges that she believed the reported conduct was a violation of law. City of Brenham v. Honerkamp, 950 S.W.2d 760, 763-64 (Tex. App.--Austin 1997, pet. denied). The satisfaction of this pleading requirement, however, does not relieve her from the requirement that she also plead that she "reported a violation of law." Tex. Gov't Code Ann. § 554.002 (West 1994 & Supp. 2001).

9. A person seeking to impose liability under the Whistleblower Act need not prove that a violation of law actually occurred. He must show instead that he reported conduct he believed violated the law. See Hart, 917 S.W.2d at 784-85; Honerkamp, 950 S.W.2d at 763. Here, Carlisle alleges only that she reported unprofessional conduct.

10. Nothing in the petition or record indicates that the county promulgated its personnel policies pursuant to a statute or an ordinance.

6, at *19 (Dec. 7, 2000); Brannon v. Pacific Employers Ins. Co., 224 S.W.2d 466, 469 (Tex. 1949). Therefore, for purposes of this appeal, the material facts are undisputed.

3. Neither the warnings nor the letter to Judge McLean are appended to the petition or appear in the record.

7. Carlisle does not allege more specifically the precise report she made to Sheriff Pollack or Judge McLean.

10. Nothing in the petition or record indicates that the county promulgated its personnel policies pursuant to

Burnet County Sheriff's Department and Burnet County, Texas v. Zarina Carlisle

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