the Fannin County Community Supervision and Corrections Department v. Glenda Spoon

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-13-00103-CV

THE FANNIN COUNTY COMMUNITY SUPERVISION
AND CORRECTIONS DEPARTMENT, Appellant

V.

GLENDA SPOON, Appellee

On Appeal from the 336th District Court
Fannin County, Texas
Trial Court Nos. CV-10-39887, CV-12-40666

Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
 MEMORANDUM OPINION
The Fannin County Community Supervision and Corrections Department (Department)

appeals the denial of its plea to the jurisdiction in a whistleblower action filed by its former

employee, Glenda Spoon. “[W]histleblowing is ‘the act of a man or woman who, believing that

the public interest overrides the interest of the organization he [or she] serves, publicly “blows

the whistle” if the organization is involved in corrupt, illegal, fraudulent, or harmful activity.’” 1

Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 727 (Tex. 1990) (Doggett, J.,

concurring) (quoting CONFERENCE ON PROFESSIONAL RESPONSIBILITY, WHISTLE BLOWING: THE

REPORT OF THE CONFERENCE ON PROFESSIONAL RESPONSIBILITY vii (Kate Blackwell, Ralph

Nader & Peter J. Petkas eds., 1972)). The whistleblower’s “hope is that the law will arrive and

protect not only the person’s rights[,] but the peace and good order of the community.” Id. at

728. Whistleblowers may face adverse employment actions. Id. “‘Almost always, their

experiences are traumatic, and their careers and lives are profoundly affected.’” Id. (quoting

ALAN F. WESTIN, WHISTLEBLOWING! LOYALTY AND DISSENT IN THE CORPORATION 2 (1981)).

Our democratic society “‘needs the services of the whistleblower to provide information

necessary for its rules to be enforced.’” Id. (quoting John A. Robertson, Commentary:

Whistleblowing and the Role of the Federal Government, in WHISTLEBLOWING IN BIOMEDICAL

RESEARCH 159, 159–60 (Judith P. Swazey & Stephen R. Scher eds., 1981)). Thus, we must

“encourage the honest and concerned employee to blow the whistle on illegalities and actual
1
“The term [whistleblowing] is derived from the act of an English bobby blowing his whistle upon becoming aware
of the commission of a crime to alert other law enforcement officers and the public within the zone of danger. Like
this corner law enforcement official, the whistleblower sounds the alarm when wrongdoing occurs on his or her
‘beat,’ which is usually within a large organization.” Winters, 795 S.W.2d at 727; TAYLOR BRANCH & CHARLES
PETERS, BLOWING THE WHISTLE: DISSENT IN THE PUBLIC INTEREST 18 (1972).

2
malpractices . . . [and] protect [her] against recrimination.” Id. Sections 554.001 through

554.010 of the Texas Government Code, commonly referred to collectively as the Texas

Whistleblower Act, do just that. See TEX. GOV’T CODE ANN. §§ 554.001–.010 (West 2012).

“The Act evidences two legislative purposes: (1) to protect public employees from retaliation by

their employer when, in good faith, employees report a violation of the law, and (2) to secure

lawful conduct on the part of those who direct and conduct the affairs of public bodies.” City of

New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex. App.—Austin 2004, no pet.).

Spoon, a former community supervision officer with the Department, alleged that she

was terminated for reporting what she believed were various violations of the law to Fannin

County District Attorney Richard Glaser. 2 Wielding the powerful shield of sovereign immunity,

the Department challenged the trial court’s subject-matter jurisdiction to hear the dispute. Under

the Texas Whistleblower Act (the Act), sovereign immunity is expressly waived when a public

employee alleges a violation of Chapter 554 of the Texas Government Code. TEX. GOV’T CODE

ANN. § 554.0035. After an evidentiary hearing, the trial court (1) determined that Spoon had met

the requirements for protection under the Act, (2) found that the Department’s sovereign

immunity was waived by the Act, and (3) denied the Department’s plea to the jurisdiction. We

affirm the trial court’s ruling.

2
Spoon also sued Department Director Debra Roberts, 336th Judicial District Court Judge Laurine Blake, and other
officials in their individual capacities. The trial court granted summary judgment to the various officials in their
individual capacities, and that ruling is not challenged on appeal.

3
I. Factual Background

Under the Act, governmental immunity is waived if the plaintiff (1) is a public employee

and (2) alleges a violation of the Act. Id.; see State v. Lueck, 290 S.W.3d 876, 881–82 (Tex.

2009). 3 A violation of the Act occurs when a governmental entity retaliates against a public

employee for making a good-faith report of a violation of law to an appropriate law enforcement

authority. TEX. GOV’T CODE ANN. § 554.002(a). To defeat the Department’s plea to the

jurisdiction raising sovereign immunity, Spoon was required to make a prima facie showing on

each element of the alleged violation of the Act. See Lueck, 290 S.W.3d at 881–82.

A. Spoon’s Pleadings

Spoon alleged that she became aware of matters of public concern and “certain illegal

acts which were occurring within the internal operations” of the Department. According to

Spoon’s third amended petition, she reported the following matters to Glaser:

1. The Department’s office manager, Gail Young, who was a candidate for the
position of Fannin County Tax Assessor, was using the Department’s “equipment,
including paper, envelopes, stamps, computers, and internet resources to promote
her campaign” during the Department’s normal business hours.

2. Roberts and Department Assistant Director Todd Maxey told Spoon and other
employees that the Department’s former director, Hal Fowler, had embezzled
Department funds.

3. Roberts and Maxey were falsifying the HIV training records of the Department’s
employees and were denying employees access to their training records.

4. Records detailing the reporting history of Steven Harrison, whose community
supervision was being supervised by the Department though he had been placed
on community supervision in Collin County, were being shredded before

3
Spoon’s status as a public employee is not at issue in this appeal.
4
 returning Harrison’s file to Collin County due to his “close romantic relationship
with the County Judge of Fannin County.”

5. Maxey committed family violence against his wife, but was using a contact at the
Department who had a connection with the Office of the Fannin County Justice of
the Peace to make sure charges against him were thrown out before they were sent
to the district attorney’s office.

6. Blake, who was taking an active role in Young’s campaign and the campaigns of
other Republicans, told Young “not to bring her mix-raced child to any public
campaign events.”

Spoon claimed that her termination was a retaliatory effort to silence her whistleblowing and to

end any further inquiry into the Department’s operations.

The petition set forth the following timeline of relevant events:

• On Friday, June 18, 2010, Spoon met with Glaser 4 to express her concerns about the six
possible violations and matters of public concern.

• On that day, Glaser was also concerned about the issues Spoon reported and planned to
contact the Texas Rangers to initiate an investigation, but instead met with Blake to
discuss Spoon’s allegations.

• On Monday, June 21, 2010, Spoon reported to work. Young approached Spoon and
asked her if she knew why Glaser and Blake would want to meet with Roberts, who was
then on vacation. Spoon responded that she was unsure why such a meeting would have
been requested.

• On Tuesday, June 22, 2010, Roberts returned from vacation and met with Blake and
Glaser at the courthouse.

• On Wednesday, June 23, 2010, Spoon reported to work. Young advised her that the
courthouse meeting had resumed and that Roberts was meeting with the human resources
department later that day.

• When Roberts returned from her June 23 meetings, she met with Spoon and told her that
she was no longer employed by the Department.

4
Spoon pled that she believed in good faith that Glaser had the authority to investigate the above-referenced matters
and to prosecute any violations of the law.
5
Spoon’s petition alleged that Roberts told her to either immediately resign her position or face

termination on the ground that she had “gone outside the chain of command.” Spoon refused to

resign and was immediately terminated. According to Spoon, Roberts instructed her not to speak

with Glaser because Glaser was already aware of the decision to terminate her.

B. The Department’s Plea to the Jurisdiction

The Department relates a very different version of the events leading to Spoon’s

termination and contends that its version of the facts conclusively establishes that the

Department’s sovereign immunity was not waived under the Act. The Department’s factual

recitation focuses on Spoon’s management, in her capacity as a community supervision officer

(CSO), of Pamela Sue Garza’s community supervision. Garza had been sentenced to a

Substance Abuse Felony Punishment Facility (SAFPF). In order to be admitted and receive bed

space in a SAFPF, Garza was required to complete SAFPF documents. In her role as CSO,

Spoon met with Garza, explained the SAFPF program, and attempted to secure her signature on

some of the routine paperwork required of all individuals admitted into the SAFPF program,

including a document titled “Consent for the Release of Confidential Information” (the Release).

Garza refused to sign the release during her initial visit with Spoon, and Spoon never requested

that Garza sign the Release after the initial visit. Instead, Spoon asked Blake and Roberts what

to do because she believed that a SAFPF would not accept Garza without the Release.

According to Roberts, Spoon said that Garza did not belong in the SAFPF program and that she

did not believe a defendant could actually be sentenced to a SAFPF without signing the Release.

6
 Blake (1) suggested that the Department contact the director of the SAFPF program to

determine whether Garza could be admitted into a SAFPF without a signed Release and, if so, to

identify the procedure for securing Garza’s admission and (2) informed the Department that she

would sign an order relieving Garza from the requirement of an executed Release after the

Department obtained the SAFPF program director’s recommendation on the appropriate verbiage

for such an order. Someone affiliated with the SAFPF program told Roberts that the program

had never accepted an individual into a facility without a properly executed release. Garza’s

SAFPF status hearing was set for June 18, 2010, and Spoon understood that the paperwork to

secure her admittance into a SAFPF had to be completed before that hearing. Before she left for

vacation, Roberts instructed Spoon at least twice to contact the district attorney’s office for

assistance in preparing whatever documents were necessary to satisfy Blake and SAFPF program

administrators so that Garza could be admitted into the SAFPF without a signed Release.

According to the Department, instead of following Roberts’ instruction, Spoon went

first to Maxey, and then to Young, and asked them both what to do about the Release. Both told

her to draft a proposed order for Blake’s signature; however, Roberts had previously explained to

Spoon that the Department’s employees lacked the expertise to prepare proposed court orders.

The Department alleged that, when Spoon met with Glaser, she told him of the conflicting

instructions she had received from Roberts, Maxey, and Young. The Department argued that

Spoon was generally gossiping about the Department, complaining about having to draft the

SAFPF document, and discussing her dissatisfaction with Maxey and Roberts—not reporting any

legitimate violations of law. The Department viewed Spoon’s communication to Glaser as an

7
inappropriate discussion about internal work matters that should have been handled internally

through the proper chain of command, as set forth in the Code of Ethics contained in the

Department’s administrative (or policy and procedure) manual.

Despite instructions to secure the necessary documents by contacting the district

attorney’s office, Spoon was unable to provide the court with either the signed Release or the

proposed draft order waiving the Release requirement. The Department claimed that, since

Roberts assumed leadership of the Department, Spoon is the only CSO who was unable to secure

all required SAFPF paperwork prior to the thirty-day status hearing. According to the

Department, Roberts considered Spoon’s failure inexcusable and terminated her for that reason

in addition to her failure to follow the chain of command.

Reciting its version of the facts, the Department’s plea to the jurisdiction argued that

Spoon did not make a good-faith report of a violation of any law to an appropriate law

enforcement authority. Specifically, the Department argued (1) that the petition failed to specify

any law allegedly violated by the Department; (2) that, alternatively, Spoon’s deposition

testimony contradicted the assertions in her petition which could be construed as violations of

law and conclusively established that no violation of law was reported to Glaser; and (3) that

Spoon could not establish a causal connection between her termination and any alleged good-

faith report of a violation of law because the Department established, as a matter of law, that

Roberts was not aware of any legitimate report when she decided to terminate Spoon’s

employment. The Department’s plea attacked both the sufficiency of Spoon’s pleadings and the

existence of jurisdictional facts.

8
II. Standard of Review

Whether a trial court has subject-matter jurisdiction is a question of law subject to

de novo review. Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.

2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). “‘A plea to the

jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter

jurisdiction.’” In re K.M.T., 415 S.W.3d 573, 575 (Tex. App.—Texarkana 2013, no pet.)

(quoting Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)). A plea to the jurisdiction can

be used to challenge the plaintiff’s pleadings, the existence of jurisdictional facts to support the

pleadings, or both.

In reviewing a trial court’s ruling on a plea to the jurisdiction, we first look to the

pleadings to determine if jurisdiction is proper. City of Waco v. Kirwan, 298 S.W.3d 618, 621

(Tex. 2009). “A plaintiff has the burden of pleading facts which affirmatively demonstrate the

trial court’s jurisdiction.” Salazar v. Wilson, No. 08-13-00171-CV, 2014 Tex. App. LEXIS

5175, at *5 (Tex. App.—El Paso May 14, 2014, no pet. h.) (citing Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)). When a plea to the jurisdiction challenges the

pleadings, we look to the pleader’s intent, construe the pleadings liberally in favor of

jurisdiction, and accept the allegations in the pleadings as true to determine if the pleader has

alleged sufficient facts to affirmatively demonstrate the trial court’s jurisdiction to hear the case.

Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings affirmatively

negate the existence of jurisdiction, then a trial court may grant a plea to the jurisdiction without

allowing the plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227.

9
 If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider

relevant evidence on that issue even where those facts may implicate the merits of the cause of

action. Kirwan, 298 S.W.3d at 622. In this context, the trial court’s review “mirrors that of a

traditional summary judgment motion.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372

S.W.3d 629, 634 (Tex. 2012). “Initially, the defendant carries the burden to meet the summary

judgment proof standard for its assertion that the trial court lacks jurisdiction.” Id. “If it does,

the plaintiff is then required to show that a disputed material fact exists regarding the

jurisdictional issue.” Id. If the relevant evidence is undisputed or fails to raise a fact question on

the jurisdictional issue, the plea to the jurisdiction is determined as a matter of law. Id.; Kirwan,

298 S.W.3d at 622 (“A plea should not be granted if a fact issue is presented as to the court’s

jurisdiction, but if the relevant undisputed evidence negates jurisdiction, then the plea to the

jurisdiction must be granted.”). In considering this evidence, we take as true all evidence

favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Kirwan, 298 S.W.3d at 622; see Tex. Dep’t of Transp. v. Ingram, 412

S.W.3d 129, 134 (Tex. App.—Texarkana 2013, no pet.).

Section 554.0035 of the Texas Government Code provides the following waiver of

immunity:

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.
Sovereign immunity is waived and abolished to the extent of liability for the relief
allowed under this chapter for a violation of this chapter.

TEX. GOV’T CODE ANN. § 554.0035. Because the plaintiff must demonstrate that she is alleging

a violation of the Whistleblower Act before sovereign immunity is waived, the Texas Supreme
10
Court has specified that the prima facie elements of a Section 554.002 violation must be included

in the plea to the jurisdiction analysis. Mission, 372 S.W.3d at 635–36; Lucek, 290 S.W.3d at

884 (“[T]he section 554.002(a) elements must be included within the pleadings so that the court

can determine whether they sufficiently allege a violation under the Act to fall within the section

554.0035 waiver [of sovereign immunity].”). Therefore, Spoon was required to allege in her

pleadings facts establishing (1) that she was a public employee (2) with a good-faith belief that

she was reporting a violation of the law as defined by Section 554.001, (3) that the report was

made in good faith to an appropriate law enforcement authority, and (4) that her employment

was terminated. 5 See TEX. GOV’T CODE ANN. § 554.002(a). If the termination occurred, as it did

here, not later than the “90th day after the date on which the employee reported a violation of

law, the suspension, termination, or adverse personnel action is presumed, subject to rebuttal, to

be because the employee made the report.” TEX. GOV’T CODE ANN. § 554.004.

However,

[w]hile a plaintiff must plead the elements of her statutory cause of action—here
the basic facts that make up the prima facie case—so that the court can determine
whether she has sufficiently alleged a [statutory] violation, she will only be
required to submit evidence if the defendant presents evidence negating one of
those basic facts. And even then, the plaintiff’s burden of proof with respect to
those jurisdictional facts must not “involve a significant inquiry into the substance
of the claims.” Cases may exist where the trial court decides, in the exercise of its
broad discretion over these matters, that the inquiry is reaching too far into the
substance of the claims and should therefore await a fuller development of the
merits.

Mission, 372 S.W.3d at 637–38 (citations omitted).

5
It is undisputed that Spoon was a public employee, that the Department is a governmental entity, and that Spoon’s
employment with the Department was terminated.
11
III. The Plea to the Jurisdiction Was Properly Denied

A. Spoon’s Petition Was Sufficient to Confer Jurisdiction

Spoon’s petition alleged, inter alia, (1) that Young, was campaigning for the position of

Fannin County Tax Assessor and using the “Department’s equipment, including . . . computers,

and internet resources[,] to promote her campaign during the Department’s normal business

hours” and (2) that “Roberts and Maxey told employees that the Department’s former director,

Hal Fowler, had embezzled Department funds.” The petition stated (1) that Spoon reported these

activities to Glaser, (2) that she believed in good faith that she was reporting illegal activity, and

(3) that the reports were made to the appropriate law enforcement authority. We are to take

Spoon’s pleadings as true when evaluating the Department’s challenge to the pleadings.

The Department argues that Spoon’s petition fails to identify the violation of law

allegedly reported by Spoon. However, as long as a whistleblower plaintiff sets forth sufficient

facts to establish that she was a public employee who in good faith, reported a violation of law

by the City or another public employee to an appropriate law enforcement authority, she is not

required to identify in her petition the exact statute she reported as having been violated. See

Wilson v. Dallas Indep. Sch. Dist., 376 S.W.3d 319, 327 (Tex. App.—Dallas 2012, no pet.); City

of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010).

The Department also argues that Spoon’s petition affirmatively negated her

Whistleblower claims because “the evidence construed in Spoon’s favor shows that Spoon failed

to satisfy all elements of her statutory claims.” This argument, based on the evidence presented

by the parties during their limited jurisdictional discovery in this case, challenges the existence

12
of jurisdictional facts rather than the pleadings. The Department points to Miranda, which

states, “If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court’s jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the

issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to

amend.” Miranda, 133 S.W.3d at 226–27. We find nothing in Spoon’s pleadings that

affirmatively negates the trial court’s jurisdiction and conclude that the pleadings, when

construed liberally in favor of jurisdiction, touch on each element of a Section 554.002

whistleblower claim. Thus, we address the crux of the Department’s plea—the existence of

jurisdictional facts.

B. Good Faith Belief of a Violation of the Law

The Department carried the initial burden to show that the evidence negated the existence

of jurisdictional facts. See Mission, 372 S.W.3d 629. The Department argued that the limited

jurisdictional discovery established that no violation of law was reported to Glaser in good faith.

We disagree, finding that Spoon raised material fact issues as to whether she reported a violation

of law to Glaser in good faith.

1. Evidence of Report of Illegal Campaigning

The Department contends that the campaigning acts allegedly committed by Young either

did not constitute illegal campaigning or were shown to have never been committed. The

Department further argues that, while Spoon alleged that Young was using the Department’s

paper, envelopes, and stamps during her campaign, her testimony did not conclusively establish

these allegations. Spoon testified that Young’s campaign literature was brown and turquoise and

13
that she did not recall whether the Department’s paper and envelopes were pre-printed with the

Department’s name and address. Spoon also testified that mail in the Department was taken to a

central location “where it ran through a postage machine and [was] mailed.” Citing to Roberts’

affidavit, the Department claims Spoon’s report was not made in good faith because Spoon knew

or should have known that Young could not have used (1) the Department’s printer because it

does not print in color, (2) the Department’s stamps because the Department has no stamps, and

(3) the Department’s envelopes because the envelopes are preprinted with the Department

letterhead. Neither Spoon’s testimony nor Roberts’ affidavit negates Spoon’s allegations because

the Department’s printers could have been used to print on colored paper, and postage could

have been placed on the campaign literature using the postage machine. 6 Additionally, we find

that Spoon presented evidence raising fact issues with respect to other aspects of alleged illegal

campaigning.

When Roberts was deposed, she testified that she forbade Young to campaign in the

office. Roberts also testified that Spoon would have reported a violation of law if she mentioned

to Glaser that Young was campaigning in the office. According to Glaser’s deposition

testimony, Spoon mentioned that Young was running for public office while she was still

employed with the Department. Glaser “assume[d] that [Spoon] thought that . . . [Young] should

have resigned to run.” He told Spoon that Young’s campaign was not unlawful merely due to

her continued employment. Glaser testified that Spoon offered no further details about the

6
Again, the plaintiff is only required to submit evidence if the defendant first meets its burden by presenting
evidence negating one of the plaintiff’s claims. Mission, 372 S.W.3d at 637.

14
campaign and that he would have considered campaigning on government time or using county

equipment to be a violation of law had Spoon raised these issues.

Contrary to Glaser’s assertions, Spoon testified, “Everything that I put in my petition that

was illegal activity I reported to Glaser.” Specifically, Spoon stated that she informed Glaser of

“the illegal campaigning” and that Glaser told her “that he was going to get the Texas Rangers to

investigate the department.” She specified,

[I] [t]old him that [Young] had been campaigning illegally in the office. That she
was passing out koozies in the office in our mail slots, they were sitting on our
desks as decorations I suppose, or campaigning. I said that her purse was being
used as a campaign poster. That she was driving up to the probation department
with a campaign sign on it while on the county property. 7

Spoon further testified that Young ordered a purse that displayed her campaign sign and

campaign buttons while using the front office computer during normal business hours. She

indicated that Young was using Facebook while at work and that Young’s Facebook photograph

was a photograph of her campaign sign. Spoon also testified that the purse was displayed at the

Department’s front desk, the central check-in point for individuals on community supervision.

Spoon stated, “I couldn’t believe it with my own eyes that she was using county computers or

having her staff use county computers during work hours with her logo. I couldn’t believe how

displayed it was.” She testified that she reported these activities—which she believed were

violations of law—to Glaser.

7
The Department did not negate Spoon’s allegation in the pleadings that Young was campaigning on government
time. The Department presented no evidence that Young did not place campaign koozies in employee mail slots on
government time.

15
 Blake’s deposition testimony does not divulge specific details about what Glaser claimed

Spoon said to him regarding the campaign. However, Blake testified, “What I vividly recall is

my concern that any time anybody is running for office and works for a governmental entity, that

they not campaign on county time . . . . I just remember that I was very vigilant personally about

wanting to make sure that there wasn’t any campaigning on county time because that’s

inappropriate.” Viewed in a light most favorable to Spoon, Blake’s testimony supports Spoon’s

claim that she told Glaser about campaigning on government time.

In light of this testimony, we now address whether Spoon reported a violation of law in

good faith. In the context of a whistleblower claim, good faith has both objective and subjective

elements. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 683 (Tex. 2013).

Spoon’s petition stated that she met with Glaser in good faith to discuss specific, enumerated acts

which she believed “were not only illegal but were matters of public concern.” Spoon also

testified, “Everything that I put in my petition that was illegal activity I reported to Glaser.”

Thus, Spoon’s petition and testimony established the subjective prong of the good-faith

requirement.

However, the objective good-faith prong “turns on more than an employee’s personal

belief, however strongly felt or sincerely held.” Id. A whistleblower plaintiff must show that her

belief that a law was violated was reasonably based on her training and experience. See Univ. of

Houston v. Barth, 403 S.W.3d 851, 856–57 (Tex. 2013) (citing Gonzalez, 325 S.W.3d at 626).

Spoon’s many years of experience as a CSO is considered in the analysis of whether she reported

a violation of law in good faith. As a CSO, Spoon was aware of Department policies. Roberts

16
testified that she banned Young from campaigning in the office. Roberts, Glaser, and Blake all

believed that it was a violation of law to campaign on government time. Because Spoon’s boss,

the district attorney, and the district judge all believed it would be inappropriate for Young to

campaign in the office on government time and because Spoon testified that she reported such a

complaint to Glaser, Spoon demonstrated objective good faith in making the report.

Next, the Department relies heavily on the fact that Spoon’s counsel has refused to

identify any law allegedly implicated by Spoon’s reports, despite numerous opportunities to do

so. “The Whistleblower Act defines ‘law’ as a state or federal statute, an ordinance of a local

governmental entity, or ‘a rule adopted under a statute or ordinance.’” Barth, 403 S.W.3d 851,

854 (quoting TEX. GOV’T CODE ANN. § 554.001(1)). Because the Act is remedial in nature, it

should be liberally construed to effect its purpose. Town of Flower Mound v. Teague, 111

S.W.3d 742, 752 (Tex. App.—Fort Worth 2003, pet. denied) (citing Castaneda v. Tex. Dep’t of

Agric., 831 S.W.2d 501, 503 (Tex. App.—Corpus Christi 1992, writ denied), superseded by

statute on other grounds, Act of May 25, 1995, 74th Leg., R.S., ch. 72, 1995 Tex. Gen. Laws

3812. An employee is protected by the Act if she believes and reports in good faith that a

violation has occurred, even where she is wrong about the legal effects of the facts (i.e., there

was no actual violation of law in fact). Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d

638, 642 (Tex. App.—Corpus Christi 2001, pet. denied); Lastor v. City of Hearne, 810 S.W.2d

742, 743–44 (Tex. App.—Waco 1991, writ denied). Also, an employee need not identify the law

allegedly violated when making the report. But there “must be some law prohibiting the

complained of conduct to give rise to a Whistleblower claim.” Llanes, 64 S.W.3d at 642. The

17
conduct reported by the employee must implicate some law for the employee to be protected by

the Act. Id. “Otherwise, every complaint, grievance, and misbehavior could support a claim

under the Act. Thus, to recover under the Act, an employee must have a good-faith belief that a

law, which in fact exists, was violated.” Id. at 643.

In the face of a plea to the jurisdiction, a trial court must have before it the facts and

arguments that would assist it in evaluating whether it has subject-matter jurisdiction. While an

employee is not required to identify in her petition the statute, ordinance, or rule that was

allegedly violated, “at some point during the litigation, the employee-plaintiff must make that

identification.” Wilson, 376 S.W.3d at 327 (holding that plaintiff-appellant challenging

dismissal of whistleblower claim for failure to report violation of law must identify in trial court

law allegedly violated to preserve argument for appeal). In response to the Department’s

numerous requests that Spoon identify the law allegedly violated, Spoon simply responded that

identification of the law allegedly violated is not required. However, “the specific law violated

is critical to the determination of whether the report was made to appropriate authority.” See

Mullins v. Dallas Indep. Sch. Dist., 357 S.W.3d 182, 188–89 (Tex. App.—Dallas 2012, pet.

denied). 8 Thus, Spoon should have responded and identified the law or laws she believed were

violated by the conduct described in her report. Id. at 189.

However, (1) because the trial court denied the plea to the jurisdiction, thereby implicitly

concluding that an existing law was implicated, (2) because we have found no other case in

8
The appellate court in Mullins noted that Mullins identified alleged violations of law during the appellate
proceedings, thereby enabling the court to analyze whether Mullins’ reports implicated violations of the law and
whether the reports were made in good faith to the appropriate law enforcement authority. Mullins, 357 S.W.3d at
188–89. Here, Spoon’s counsel failed to even identify any alleged violation of law on appeal.
18
which counsel has failed to identify the law allegedly violated by the conduct described in the

report, and (3) because all of the witnesses, including the district attorney and district judge,

testified that it was illegal to campaign for office on government time, we will undertake to

determine if a law exists prohibiting the conduct Spoon complained of.

Believing that Spoon’s allegations might stem from violations of the Department’s

internal policies, the Department correctly argues that a violation of a department’s internal

policies does not always constitute a violation of the law. See Harris Cnty. Precinct Four

Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex 1996); see Barth, 403 S.W.3d at 856;

Ruiz v. City of San Antonio, 966 S.W.2d 128, 130 (Tex. App.—Austin 1998, no pet.); Burnet

County Sheriff’s Dep’t v. Carlisle, No. 03-00-00398-CV, 2001 WL 23204, at *6 (Tex. App.—

Austin Jan. 11, 2011, no pet.) (not designated for publication). However, a rule adopted under a

statute or ordinance or an ordinance of a local governmental entity constitutes a law under the

Act, and we find that Spoon’s report implicated such a rule. See TEX. GOV’T CODE. ANN.

§ 554.001(1).

As applicable to this case, Section 76.002(a) of the Texas Government Code gives the

district judges within each judicial district the authority to establish a community supervision and

corrections department. TEX. GOV’T CODE ANN. § 76.002(a) (West 2013). 9 “The judicial

9
Employees of the Department are not state employees, except for purposes of worker’s compensation under
Chapter 501 of the Texas Labor Code and indemnification provisions and provisions providing defense by the
Attorney General under Chapter 104 of the Texas Civil Practice and Remedies Code. TEX. GOV’T CODE ANN. §
76.006(c) (West 2013).

19
districts served by a department shall pay the salaries of department employees.” TEX. GOV’T

CODE ANN. § 76.006(b) (West 2013). 10 Section 76.006(a) reads,

The department shall contract for all employee benefits with one county served by
the department and designated for that purpose by the judges described by Section
76.002. To the extent that employee benefits are provided by a county under this
subsection, the employees are governed by personnel policies and benefits equal
to personnel policies for and benefits of other employees of that county.

TEX. GOV’T CODE. ANN. § 76.006(a).

For purposes of our analysis, Spoon is governed by Fannin County’s personnel policies

and procedures. Section 158.009 of the Texas Local Government Code allows a commissioner’s

court to “adopt, publish, and enforce rules regarding: . . . matters relating to the selection of

county employees and their procedural and substantive rights, advancement, benefits, and

working conditions of county employees.” TEX. LOCAL GOV’T CODE ANN. § 158.009 (West

2008). On April 24, 2000, the Commissioner’s Court of Fannin County adopted Section 3.09 of

the Fannin County Personnel Policy Manual (the Manual), which has been in effect since that

time. Section 3.09, titled “Policy on Political Activity,” states,

County employees shall not: . . .

b. Directly or indirectly coerce, attempt to coerce, command, or advise another
person to pay, lend, or contribute anything of value to a party, committee, organization,
agency, or person for a political reason; or

c. Use any equipment, property or material owned by the County for political
activity or engage in political activity while on duty for the County.

FANNIN COUNTY PERSONNEL POLICY MANUAL § 3.09 (2000), available at http://tools.cira.

state.tx.us/users/0045/docs/Treasurer/Current_Fannin_County_Personnel_Manual_2-3-14.pdf

10
The Department serves only Fannin County.
20
(last visited July 15, 2014). Therefore, Section 3.09 of the Manual constitutes a law within the

meaning of the Act. See discussion in City of Waco v. Lopez, 183 S.W.3d 825, 829 (Tex. App.—

Waco 2005), overruled by 259 S.W.3d 147 (Tex. 2008).

2. Evidence of Report of Embezzlement

Moreover, Spoon introduced evidence establishing that she reported possible

embezzlement by another public employee. According to Spoon, the issue of embezzlement of

Department funds by the former Department director, Fowler, was a regular topic of discussion

by Roberts, Maxey, and Department employees Lisa Ayers and Corey Baker. Glaser and Blake

testified that the issue of embezzlement was not mentioned. However, Spoon testified,

I told [Glaser] that [Maxey] had said that Hal Fowler had embezzled money when
he left and that was the reason for the budget problems in the probation
department. And that [Roberts] was going to tell Judge Blake about the
embezzlement. And when she told us at the office that—when she learned at the
barbecue cook-off that Judge Blake and Hal Fowler went to the same church, that
she decided not to tell Judge Blake about Hal’s embezzling money. I did not
believe that Hal embezzled money, that I couldn’t understand why the budget
problems that possible [Maxey] needed to be looked at about his budgeting issue.
It might be him and not Hal Fowler.

Section 554.002(a) of the Act protects a public employee “who in good faith reports a

violation of law by . . . another public employee.” TEX. GOV’T CODE. ANN. § 554.002(a).

Fowler was a public employee prior to his retirement. Spoon was alleging that Roberts believed

Fowler had embezzled money but secreted the fact. Clearly, embezzlement of the Department’s

funds implicates the Texas Penal Code’s theft statute. See TEX. PENAL CODE ANN. § 31.02

(West 2011). The Department argues that Spoon’s report was not made in good faith because

(1) it was based solely on rumors, and (2) Spoon’s testimony that she did not believe Fowler

21
embezzled money established that Spoon lacked a subjective good-faith belief when making the

report. 11

Spoon testified that it was common knowledge that Fowler embezzled funds and that

people around the office discussed the matter openly. Whistleblower actions can be based on

this type of first-hand hearsay. Tex. Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 853

(Tex. App.—Austin 2007, pet. denied) (“it is permissible for a whistleblower’s knowledge about

violations of law to be based on hearsay”) (citing Castaneda, 831 S.W.2d at 504 (lack of

personal knowledge does not conclusively negate subjective good faith)). Although Spoon

testified that she did not personally believe Fowler had embezzled funds, she indicated that

people in the office said that funds had been embezzled, suggested that perhaps Maxey was

involved, and felt the matter serious enough to report to Glaser.

Based on the evidence presented, which we view in a light most favorable to Spoon, we

conclude that Spoon raised fact issues as to whether she reported violations of law to Glaser in

good faith. 12 Accordingly, we overrule this point of error. 13

11
Spoon testified,

[Maxey] said that [Fowler] took an enormous amount of money when he left of time, like
vacations and sick leaves and all that . . . . But evidently he got a large check . . . for vacation and
sick leave that he had already taken. Actually taken in the physical sense but he got a financial --
paid for it again for the second time. And that was a large check.

The Department argues that Spoon’s testimony establishes that she did not have a good-faith objective belief that
embezzlement occurred because (1) the act Spoon described in her testimony does not amount to embezzlement, and
(2) no one in Spoon’s position would believe that Fowler’s acts constituted embezzlement. However, when we view
the evidence in the light most favorable to Spoon, it appears that she testified that, according to Maxey, Fowler was
paid for vacation and sick leave twice and that he was not entitled to the second payment.
12
The Texas Government Code states,

22
 C. Evidence of Causal Connection

The Department argues that Spoon failed to show a causal link between her report and

Roberts’ decision to terminate her. To show causation, “a public employee must demonstrate

that after he reported a violation of the law in good faith to an appropriate law enforcement

authority, the employee suffered discriminatory conduct by his employer that would not have

occurred when it did if the employee had not reported the illegal conduct.” City of Fort Worth v.

Zimlich, 29 S.W.3d 62, 67 (Tex. 2000) (citing Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d

629, 633 (Tex. 1995)); see Steele v. City of Southlake, 370 S.W.3d 105, 117 (Tex. App.—Fort

[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

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

TEX. GOV’T CODE ANN. § 554.002(b). In this context, good faith means,

(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the
law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and

(2) the employee’s belief was reasonable in light of the employee’s training and experience.

Id. (citing Tex. Dep’t of Trans. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002). The Department concedes that Glaser
was the appropriate law enforcement authority with respect to the illegal campaigning and embezzlement
allegations.
13
The Department’s prayer for relief on appeal states,

Alternatively, for the sake of judicial economy so that legally-insufficient claims are not left to be
re-evaluated by this Court again on appeal after trial or after another plea is filed to narrow the
issues for trial, Appellant asks this Court to reverse and order dismissal of each and every claim that
fails to establish all elements of a violation of the Texas Whistleblower Act and concerning which
the district court therefore lacks jurisdiction to consider.

The Department cites no authority which would support their entitlement to this requested relief. The parties in this
case conducted limited jurisdictional discovery. It appears that depositions of key witnesses were timed. In essence,
the Department seeks summary judgment based on this limited discovery. We need not entertain the Department’s
request at this stage in the litigation.
23
Worth 2012, pet denied). A causal connection can be proven by circumstantial evidence.

Zimlich, 29 S.W.3d at 69.

Here, Spoon met with Glaser, Glaser immediately discussed that meeting with Blake,

Blake met with Roberts on the first day that Roberts returned from vacation, and Spoon was fired

one day after Roberts’ meeting with Blake. Roberts testified that her decision to terminate

Spoon was based, in part, on what Blake told her. When viewed in the light most favorable to

Spoon, there is sufficient circumstantial evidence to show a causal link between her report and

her termination. Furthermore, because Spoon was terminated within days of her reports to

Glaser, there is a rebuttable presumption that her termination occurred as a result of the report.

See TEX. GOV’T CODE ANN. § 554.004(a).

Next, Section 554.004 of the Texas Whistleblower Act provides,

It is an affirmative defense to a suit under this chapter that the employing state or
local governmental entity would have taken the action against the employee that
forms the basis of the suit based solely on information, observation, or evidence
that is not related to the fact that the employee made a report protected under this
chapter of a violation of law.

TEX. GOV’T CODE ANN. § 554.004(b). The Department argues that undisputed evidence

conclusively established its affirmative defense that Roberts did not know of Spoon’s report to

Glaser and that Spoon was terminated for reasons other than her report.

The Department relies primarily on Roberts’ deposition testimony that Spoon was fired

(1) for failure to follow her direct order regarding the Garza SAFPF order and (2) for failure to

follow the chain of command by first bringing complaints about the Department and internal

gossip to the attention of the district attorney. The Department’s assertions were not

24
conclusively established by the record. While Roberts testified that she told Spoon several times

to talk with the district attorney about the order (which Spoon eventually did), Spoon testified

that it was her idea to go to the district attorney’s office. Spoon also testified that she needed

clarification about what to do with the order because Maxey told her to draft the order while

Roberts told her not to do so. Also, we have found that Spoon reported what she believed were

violations of law to Glaser, and Roberts testified that Department employees are not required to

go through the chain of command when reporting violations of law.

The Department also contends that it is undisputed that Roberts was the sole decision

maker, Roberts did not consult with Glaser or Blake before deciding to terminate Spoon, and

Roberts had no knowledge of the substance of Spoon’s report to Glaser at the time she decided to

terminate Spoon. However, (1) Spoon testified she reported all of the six enumerated complaints

in her petition—including violations of law—to Glaser, (2) Glaser discussed the Spoon meeting

with Blake, (3) Blake’s affidavit suggests that illegal campaigning was mentioned to her by

Glaser, (4) Roberts met with Blake, (5) Roberts testified that the decision to terminate Spoon

came after her meeting with Blake, (6) Roberts said her decision was, in part, based on the

conversation she had with Blake, and (7) Spoon testified that Roberts told her there was no

further need to contact Glaser because Glaser was already aware of Roberts’ decision to

terminate her employment. This evidence allows for a multitude of inferences, many of which

are contradictory, to be drawn. As a result, the reason for Spoon’s termination and Roberts’

knowledge of Spoon’s report to Glaser are disputed issues of material fact. The Department has

failed to meet its burden of conclusively negating the element of causation.

25
 Viewed in the light most favorable to Spoon, the evidence does not, in our view,

(1) negate the jurisdictional facts demonstrating Spoon’s prima facie case under the Act or

(2) conclusively establish the Department’s affirmative defense. Rather, we find that the

evidence raises fact issues as to whether Spoon was terminated for making a good-faith report to

Glaser of a violation of the law. Accordingly, the Department’s plea to the jurisdiction was

properly denied.

IV. Conclusion

The judgment of the trial court is affirmed.

Jack Carter
Justice

Date Submitted: June 3, 2014
Date Decided: July 16, 2014

26