DISSENT and Opinion Filed August 29, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00945-CV
CITY OF DENTON, Appellant
V.
MICHAEL GRIM AND JIM MAYNARD, Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-08139
DISSENTING OPINION
Before Justices Molberg, Pedersen, III, and Smith
Opinion by Justice Pedersen, III
I respectfully dissent. As a straightforward matter of statutory construction,
the Texas Whistleblower Act (the Act) does not apply.1 I dissent from the majority’s
conclusion that City Council Member Keely Briggs was an “employing
governmental entity” within the meaning of the Act. As part of this ground of
dissent, I disagree with the majority’s incorrect statutory construction, as it widens
1
Appellees asserted claims against the City under the Texas Open Meetings Act and the Texas
Whistleblower Act in their original petition. After amendment, appellees removed their claims under the
Texas Open Meetings Act.
the Act’s considered and limited waiver of sovereign immunity. Consequently, I
would dismiss the case on this first ground.
If the Act applied, I would dissent because the majority fails to apply
controlling Texas Supreme Court precedent, Office of the Attorney General of Texas
v. Rodriguez, 605 S.W.3d 183 (Tex. 2020). Rodriguez demonstrates there is
insufficient evidence of but–for causation. Hence, I would reverse the trial court’s
judgment and render judgment in favor of appellant on this second ground.
Analysis
Inapplicability of the Texas Whistleblower Act
We review statutory construction de novo. See City of Rockwall v. Hughes,
246 S.W.3d 621, 625 (Tex. 2008). The legal question in this case is whether Keely
Briggs’s leaking information—in these circumstances—is clearly and
unambiguously conduct the Legislature intended to fit within the Act’s limited
waiver of sovereign immunity. It is not.
The Act
We recently discussed the Texas Whistleblower Act:
The Texas Whistleblower Act contains an immunity waiver which states
that “[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,” and “[s]overeign immunity is waived and
abolished to the extent of liability for the relief allowed under this
chapter.” TEX. GOV’T CODE § 554.0035.
...
Under the Act, state or local governmental entities “may not suspend or
terminate the employment of, or take other adverse personnel action
–2–
against, a public employee who in good faith reports a violation of law
by the employing governmental entity or other public employee to an
appropriate law enforcement authority.” Id. § 554.002(a).
City of Fort Worth v. Birchett, No. 05-00265-CV, 2021 WL 3234349, at *3–4 (Tex.
App.—Dallas July 29, 2021, pet. denied) (mem. op.) (emphasis added).
Thus, to meet the Legislature’s limited waiver of governmental immunity,
Briggs must have violated the law as an “employing governmental entity” or
“another public employee.” Id. Appellees concede Briggs was not “another public
employee.”2 Accordingly, discussion here is limited to whether Briggs was “the
employing governmental entity”3 at the time she handed over the information.
Briggs must have operated as “part of the City” when she leaked the information for
the Act to apply. See City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 895 (Tex.
App.—Fort Worth 2001, pet. denied) (“[T]hose adverse personnel actions were not
proscribed by the Act unless [an elected official] was part of the City when he
committed the alleged legal violations.”).
The parties’ case law
In arguing whether Briggs was acting as an “employing governmental entity”
under the Act when she disclosed the information, the parties mainly rely on two
2
The Act defines “public employee” as “an employee or appointed officer other than an independent
contractor who is paid to perform services for a state or local governmental entity.” TEX. GOV’T CODE
ANN. § 544.001(4). It is undisputed that (i) Briggs was not an appointed officer and (ii) Briggs was not
paid to perform her duties as a council member for the City.
3
It is undisputed that the City is a municipality that satisfies the definition of a “local governmental
entity” under the Act. See TEX. GOV’T CODE ANN. § 554.001(2) (In this chapter . . . “[l]ocal governmental
entity means a political subdivision of the state, including a . . . municipality.”).
–3–
opinions, Johnson, 48 S.W.3d 887, and Housing Authority of City of El Paso v.
Rangel, 131 S.W.3d 542 (Tex. App.—El Paso 2004, pet. granted, judgm’t vacated
w.r.m.).
Johnson applied the appropriate legal standard, focused on whether a city
alderman acted within his official capacity when he allegedly violated laws, and
stated its issue:
If an elected official and the employing governmental entity are the
same unit when the official is acting in his official capacity, is the
official also part of the employing governmental entity when he is not
acting in his official capacity?
Johnson, 48 S.W.3d at 895. Johnson involved an allegation that a city alderman
assaulted his girlfriend’s daughter in his home and possibly was involved in
additional “suspected criminal activity.” According to Johnson: “[The alderman]
would be part of the City’s government under the Act if he . . . committed a violation
of the law in his official capacity as an alderman . . . .” Id. (observing, “There is no
allegation or evidence that [the alderman] committed any violation of the law in his
official capacity as alderman.”). Johnson stated:
[The whistleblower] has not directed us to any cases, and our
research has not revealed any, in which a court has held that an
elected official is part of the employing governmental entity when he
is acting in his private, rather than official capacity. Instead the cases
to which the Act has been applied have involved legal violations
committed by an official in the scope of the official’s duties, or by a
public employee.
Id. at 895–96 (footnotes omitted).
–4–
Johnson, addressing statutory construction and the Act’s limited waiver of
sovereign immunity, recognized:
In addition, legislative consent to suit must be by clear and
unambiguous language. There is nothing in the plain language of the
Act that would indicate clear legislative intent to waive sovereign
immunity from suit based on the private acts of elected officials. The
Act’s provisions are exclusive, and the courts may not add to them.
Id. at 896.4
The other opinion relied on by all parties, Rangel, involved possible
application of the Act to two commissioners of a city housing authority. Rangel
initially stated the correct legal standard:
An employee’s actions taken pursuant to his duties and authorized by
state law are considered actions taken by the state. Conversely, acts
outside the scope of an employee’s official duties are not acts of the
State. We thus address whether the acts of [the housing commissioners]
were within the scope of their duties as commissioners.
Rangel, 131 S.W.3d at 547 (citations omitted). The Rangel court considered whether
two housing commissioners’ acts were taken in the commissioners’ official
capacities and thus were acts of the “employing governmental entity.” Id. at 547–49.
The first housing commissioner controlled a direct or indirect interest in a housing
authority project for pecuniary gain but failed to disclose his interest. See TEX. LOC.
GOV’T CODE ANN. § 392.042(d) (prohibiting such conduct). Rangel held the first
4
Johnson does not end here but adds dicta about the remedial purposes of the Act. The dicta relates to
the majority’s erroneous construction of the Act’s limited waiver of sovereign immunity and are discussed
below.
–5–
commissioner acted in his official capacity in failing to disclose his interest. Rangel,
131 S.W.3d at 548.
Facts
Denton (hereafter “the City”) has a council–manager form of government
wherein the City Council serves as the legislative, policy–making branch. The City
manager’s office has control over day-to-day operations of the City and its
departments.
Keely Briggs served as one of the City’s seven elected council members.5
Briggs obtained information from Interim City Manager Howard Martin. Some of
that information, when provided to Briggs, had been separated as confidential.
Briggs redacted some information on her own to be “extra careful.” Briggs failed to
redact all confidential information.
Briggs invited a reporter of the Denton Record–Chronicle to her home for the
reporter to pick up the documents. Briggs, at her home, turned over some
information that she had obtained from Martin to the Denton Record–Chronicle.
Briggs disclosed the information without the knowledge or approval of City Council.
Briggs turned over the information without the knowledge or approval of the Interim
5
At the times relevant to this case, the City’s council members were unpaid. See TEX. GOV’T CODE
ANN. § 544.001(4) (“‘Public employee’ means an employee or appointed officer other than an independent
contractor who is paid to perform services for a state or local governmental entity.”).
–6–
City Manager Howard Martin. When asked why she released the information to the
Denton Record–Chronicle, Briggs testified:
[Briggs]. I just wanted everybody to see what I would see.
[City’s Trial Counsel]. And what was that?
[Briggs]. Because the things that I saw made me feel so
uncomfortable, and no one else was listening.
[City’s Trial Counsel]. Is it your belief that the citizens of Denton
have a right to transparency?
[Briggs]. Yes.
[City’s Trial Counsel]. Was that what you were trying to
accomplish, or something else?
[Briggs]. I was just trying—I was just—I wasn’t trying to
accomplish anything. I just wanted to share the knowledge that I
had and let everybody come from the same place, know where I
was coming from.
The Denton Record–Chronicle published an article with the information
available on its website. Appellees reported Briggs’s disclosure to the then–City
Attorney, Anita Burgess. Council members expressed dismay at Briggs’s disclosing
the information. Burgess sent Briggs a memorandum, explaining that due to Briggs’s
disclosure of the information, the interests of the City and Briggs were “adverse”:
Your release of this information ethically obligates me to advise
you that the City organization’s interests appear to be
inconsistent with yours as it concerns this release, and that your
interests appear to be adverse to (he [sic] City. Please understand
that, when there is an adversity of interests, a lawyer for an
organization cannot provide legal representation for a constituent
individual of the organization who is adverse. Furthermore, any
discussions between me and my staff and you may not be
privileged insofar as they relate to this topic. Finally, it may be
in your best interests to consult with an attorney of your choosing
regarding this release of information. The City is constitutionally
prohibited from paying for this consultation and representation
al [sic] at this time.
–7–
Burgess sent the remaining six members of the City’s council a memorandum, which
attached the above-described memorandum to Briggs and provided:
The City Council is aware of the release of confidential
information by one council member to the Denton Record-
Chronicle. This release included confidential data in four
different categories: [Denton Municipal Electric] competitive
information; attorney-client privileged information; information
made confidential by virtue of a confidentiality agreement with
vendors; and RFP/RFQ information made confidential by state
law.
City Council did not ratify or otherwise retroactively approve Briggs’s turning
over the information. Briggs’s disclosure of the information did not result in legal or
other adverse action against her.
Application
Applying the plain and unambiguous language of the Act, Johnson, and
Rangel to these facts and circumstances, I cannot conclude Briggs was acting in her
official capacity or as part of the City when she leaked the information.
Briggs did not act as a part of the City—she acted apart from the City. Briggs
kept her plan secret from other City officials and workers. She did not seek approval
or permission from City Council or Martin. There is no evidence that Briggs
informed anyone connected with the City of her intended surprise disclosure.
Moreover, Briggs excluded others from her plan by taking it upon herself to redact
what she guessed might be confidential or sensitive information, although the City
had tasked others with making such determinations and producing such documents.
–8–
Briggs invited a reporter from the Denton Record–Chronicle to her home to disclose
the documents. Briggs testified her purpose was purely personal. She made a
personal statement, not a statement as a part of the City or on behalf of the City or
in her official capacity: “I just wanted to share the knowledge that I had and let
everybody come from the same place, know where I was coming from.”
When City officials and City employees, including appellees, realized what
Briggs had done, they took immediate action. Appellees reported Briggs’s leak to
City Attorney Burgess. As appellees express in their brief here, they worked with
the city attorney on “damage control,” including having the Denton Record-
Chronicle remove the leaked documents. One City Council member called Briggs’s
disclosure “rogue.” Council members expressed dismay at Briggs’s disclosure.
Burgess soon officially notified Briggs that the City’s interests and Briggs’s interests
were “adverse” and “inconsistent” because Briggs had disclosed the documents.
Moreover, the city attorney officially notified the City Council that Briggs’s interests
were “adverse” and “inconsistent” with those of the City when Briggs disclosed the
information. The Denton City Council did not ratify or later approve Briggs’s
disclosure. These reactions of City officials and City workers hardly evidence that
Briggs acted as a part of the City or in her official capacity, quite the contrary.
Based on the evidence at trial, no reasonable fact finder could conclude that
Briggs could be considered a part of the City, or as having acted in her official
capacity, when she leaked the information. Briggs apparently kept her unofficial
–9–
intentions to herself until it was too late for the City to do anything about it. This is
consistent with Briggs’s statement that she simply wanted people to know where she
“was coming from.” In short, Keely Briggs’s actions were unauthorized,
unapproved, unannounced, unofficial, and unratified.
The Legislature did not clearly and unambiguously waive sovereign immunity
for Briggs’s actions in this case. “We may find a waiver of immunity only where
legislative intent to waive immunity is clear and unambiguous.” Ellis v. Dallas Area
Rapid Transit, No. 05-18-00521-CV, 2019 WL 1146711, at *2 (Tex. App.—Dallas
Mar. 13, 2019, pet. denied) (mem. op.); see TEX. GOV’T CODE ANN. § 311.034 (“[A]
statute shall not be construed as a waiver of sovereign immunity unless the waiver
is effected by clear and unambiguous language.”). I cannot conclude that the Texas
Whistleblower Act clearly and unambiguously waives the City’s immunity. See TEX.
GOV’T CODE ANN. § 554.002; Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d
54, 58 (Tex. 2011) (“[W]hen a waiver of immunity has been necessary to make sense
of a statute, we have held it to be clear and unambiguous.”). Appellees request we
adopt a rule that personally motivated acts of a single council member of a
municipality—acting individually and without the knowledge, consent, approval, or
ratification of any of the remaining council members or other government official
and that were concluded to have been in conflict with and adverse to the interests of
the City—may subject the municipality to a waiver of its governmental immunity
under the Act. Apart from clear and unambiguous legislative consent to such a rule,
–10–
which is absent here, I cannot adopt appellees’ interpretation of the Act. See TEX.
GOV’T CODE ANN. § 311.034.
Improper standard in Johnson, Rangel, and the majority opinion
I also disagree with the majority because it uses an erroneous legal standard
to determine whether Briggs was acting in her official capacity to conclude whether
she was an “employing governmental entity.”
Johnson and Rangel state appropriate standards—up to a point. However,
Johnson added dicta, discussed below, addressing the remedial purposes of the Act.
Rangel, when considering a second housing commissioner, unfortunately applied
Johnson’s dicta.
Johnson, having determined the alderman was not acting in his official
capacity when committing his reported acts, added dicta, not present in the Act,
concerning the remedial purpose of the Act, as follows:
We believe our decision on this issue is in keeping with the Act’s
remedial purpose of securing lawful conduct on the part of those who
direct and conduct the affairs of public bodies. To achieve this purpose,
the Act is directed toward public employer’s violations of the law that
are detrimental to the public good or society in general. The legal
violations [the alderman] is alleged to have committed in his personal
capacity do not relate to the affairs of the City itself. In addition, they
were detrimental primarily to the individuals involved, not to society in
general. In short, they are not things the public would be concerned
about simply because of [the alderman’s] status as an elected official.
–11–
Johnson, 48 S.W.3d 896 (emphasis in original, footnotes omitted). This dicta—based
and developed on the remedial purpose of the Act—constitutes an improper legal
standard applied in Rangel and relied on by the majority here.
Before proceeding from consideration of Johnson to Rangel, it is worth
bearing in mind the Third Court of Appeals’ observation about over-emphasizing
the Act’s remedial purpose—as occurred in Johnson and in Rangel—when
construing the Act:
Although the Legislature did not expressly say so in the
Whistleblower Act, this Court and various of our sister courts have
previously inferred that the Act should be “liberally construed” in
light of its “remedial” goal of enhancing openness and legal
compliance in government. . . . But whatever utility this concept
might have in guiding the Act's other applications, the Texas
Supreme Court has recently emphasized that, as with other statutes,
the Act “‘shall not be construed as a waiver of immunity unless the
waiver is effected by clear and unambiguous language.’” The high
court has likewise reminded us that it is the Legislature's sole
prerogative as to whether, how, or to what extent to waive immunity
under the Act and that both this principle and the immunity doctrines
themselves are founded on judicial deference to legislative policy
judgments regarding the appropriate use of Texas's governmental
resources. In short, our analytical starting point is that immunity bars
[Plaintiff’s] suit against [Defendant], and whether it should be
otherwise turns not on the Act's overarching policy goals, however
salutary judges may perceive them to be, but solely on whether the
Legislature has clearly and unambiguously waived immunity with
respect to the facts [Plaintiff] has presented.
Hunt Cty. Cmty. Supervision & Corr. Dep’t v. Gaston, 451 S.W.3d 410, 419 (Tex.
App.—Austin 2014, pet. denied) (footnotes omitted).
–12–
The problem with Rangel is the same problem observed by the Third Court of
Appeals in Gaston: undue emphasis and reliance on the remedial purpose of the Act.
See id. In Rangel, the second commissioner allegedly misreported her income to
obtain Section 8 housing and used her position as commissioner to facilitate approval
of her application for higher benefits. See Rangel, 131 S.W.3d at 548. A statute
considered by the court did not forbid the alleged wrongful act, but Rangel stated—
rather indefinitely—that “the misconduct involved in the procurement of additional
benefits which could fall within the official duties of a commissioner.” See id.
(emphasis added). To find the commissioner’s act was an act of an “employing
governmental entity,” the Rangel court relied on Johnson’s dicta—related to the
remedial goals of the Act and italicized below—to decide the second commissioner
was acting in her official capacity when allegedly violating the law:
“. . . [Johnson v.] City of Cockrell Hill, 48 S.W.3d at 890. The court
found that the legal violations alleged to have been committed by the
alderman did not relate to the affairs of the City itself and that the actions
were detrimental to the individuals involved, not to society in general.
Id. at 896. The court also decided that the alderman’s actions were not
matters the public would be concerned about simply because of the
alderman’s status as an elected official. Id. The facts here are
distinguishable. [The second commissioner’s] actions in misstating her
income were detrimental to society in general and would be the type of
conduct the public would be concerned about if committed by an
appointed commissioner of HACEP. The governing board is charged
with the authority to rent or lease housing to those with low income in
accordance with authority guidelines. See TEX. LOC. GOV’T CODE ANN.
§ 392.005. The misfeasance committed by [the second commissioner]
clearly relates to the affairs of HACEP and was not merely detrimental
to those parties involved. Society as a whole is detrimentally affected by
such a misrepresentation because deserving candidates may be turned
–13–
away and denied housing. And the public would be concerned if one of
HACEP’s own commissioners fraudulently misrepresented her personal
income in order to gain better housing because the commissioner holds
her position as a tenant.
We conclude that the actions of [the two commissioners] fall within
the official duties and affairs of HACEP and their misconduct should be
construed as acts of the employing governmental entity.
Id. The Rangel court mistakenly utilized Johnson’s judicial interlineation beyond
the statute’s text as a legal standard to determine that the second commissioner acted
in her official capacity. See Johnson, 48 S.W.3d at 896; see also TEX. GOV’T CODE
ANN. § 311.034 (“[A] statute shall not be construed as a waiver of sovereign
immunity unless the waiver is effected by clear and unambiguous language.”).
The majority’s reliance on the Johnson dicta that was repeated in Rangel
The majority states it agrees with Johnson’s and Rangel’s general approach
to determine whether acts were done in Briggs’s official capacity and relies on
Johnson’s dicta to make the determination. Majority Op. at 18. For example, the
majority parenthetically describes Johnson as “concluding alderman’s alleged
assault, sexual assault, and drug-related activities were actions taken in personal
capacity and report about those actions was not protected under the Act, when
actions did not relate to affairs of the City itself, were detrimental primarily to the
individuals involved, not to society in general, and were not things the public would
be concerned about simply because of [his]status as an elected official.” See
Majority Op. at 18 (emphasis added). The majority also compares Johnson and
–14–
Rangel in terms of Johnson’s dicta concerning the remedial purpose of the Act.6 As
noted, Johnson stated its dicta only after already having appropriately concluded:
“There is no allegation or evidence that [the alderman] committed any violation of
the law in his official capacity as alderman.” See Johnson, 48 S.W.3d at 895. I
disagree with the majority’s use of Rangel insofar as the majority and Rangel utilize
Johnson’s dicta—concerning the remedial purpose of the Act—as a proxy for
analyzing whether an official is acting in his or her official capacity.
The majority reaches two basic conclusions that Briggs was an “employing
governmental entity”—each reliant on the dicta in Johnson and used in Rangel:
1. “Here, Briggs’s alleged misconduct in providing information to
DRC about the DEC could fall within her official duties of a city
council member, at least insofar as it related to her votes regarding
the DEC contracts”; and
2. “Moreover, her disclosure of confidential information about the
DEC to DRC would be the type of conduct the public would be
concerned about if committed by an appointed city council member
as it could jeopardize pending or future contracts with the City or
possibly expose the City to further liability.”
See Majority Op. at 20. I address each in turn.
6
The majority states: “In Johnson, our sister court reasoned that [the alderman’s] alleged violations of
law was not by the employing governmental entity because they did not relate to the affairs of the city itself,
were detrimental primarily to the individuals involved, not to society in general, and were ‘not things the
public would be concerned about simply because of [the alderman’s] status as an elected official.’ See
Johnson, 48 SW.3d at 895–97. In Rangel, our sister court reasoned that [the commissioner’s] alleged
violation of law was by the employing governmental entity because her alleged misconduct in procuring
additional benefits could fall within the official duties of a commissioner and her misstatement of income
would be the type of conduct the public would be concerned about if committed by an appointed official.
See Rangel, at 547–48.” See Majority Op. at 20.
–15–
First, the majority follows Rangel and states that Briggs’s disclosure “could”
have fallen within her official duties. Rangel’s “could” test is quite vague and can
lead to an expansion of the Act’s limited immunity. The majority’s conclusion that
Briggs’s conduct “could fall” within her official duties is an application of this
erroneous expansion. Second, the majority moves from “could” to the “related to”
dicta stated in Johnson (and improperly applied in Rangel) as a standard to determine
whether Briggs acted in her official capacity. Finally, the “related to” standard in
Rangel judicially expands the Act’s limited waiver of immunity beyond that enacted
by the Legislature. The majority’s adoption of Rangel’s “related to” standard—a
broad standard, indeed—requires that future plaintiffs need only inconclusively posit
that a complained-of act “could” fall within an elected official’s duties and might be
“related to” an official’s function. The majority’s continued expansion, suggested
by Rangel, of the Act’s limited waiver of immunity is error. Moreover, the majority
apparently does not attach significant weight to evidence relating to official capacity,
including: (1) evidence that Briggs acted without the knowledge, consent, approval,
or ratification of any of the remaining council members or other government official;
(2) evidence that Briggs’s conduct was determined by the relevant city official to
have been in conflict with and adverse to the interests of the City, or (3) other
evidence, outlined above, that Briggs was not acting in her official capacity.
The majority’s second basis for its decision, “possible public concern,” is
taken directly from Johnson’s dicta related to the remedial goals of the Act—not
–16–
from Johnson’s previous determination whether the alderman there was acting in his
official capacity. See Johnson, 48 S.W.3d at 896 (stating, “In short, they are not the
things the public would be concerned about simply because of [the alderman’s]
status as an elected official.”); see also Rangel, 131 S.W.3d at 548 (noting, “And the
public would be concerned if . . . .”). I find the “possible public concern” test to be
an extra-statutory, judicially created standard to determine whether the Act’s limited
waiver of sovereign immunity extends here.
Accordingly, I disagree with the majority’s analysis insofar as it relies on
Johnson’s dicta, improperly relied on in Rangel, to determine that Briggs acted in
her official capacity.
The majority’s reliance on Office of the Attorney General of Texas v.
Brickman also provides an unsupported judicial broadening of the Act’s limited
waiver of immunity. The majority quotes Brickman as stating in light of the broad
remedial nature of the Act, “it seems reasonable to conclude that the legislature
intended the statute to be more inclusive, sweeping up appointed officials whose bad
acts might otherwise not fall within the ambit of the Act, rather than less.” Majority
Op. at 21 (quoting Office of the Attorney Gen. of Tex. v. Brickman, 636 S.W.3d 659,
673 n.15 (Tex. App.—Austin 2021, pet. pending)).
First, the two opinions cited in Brickman for support of the proposition do not
suggest that the Act is properly applied in “sweeping up appointed officials whose
bad acts might not otherwise fall within the ambit of the Act, rather than less.” See
–17–
Brickman, 636 S.W.3d at 673 n.15 (citing Tex. Dep’t of Hum. Servs. v. Green, 855
S.W.2d 136, 142 (Tex., App.—Austin 1993, writ denied) (superseded by statute on
other grounds) (stating, “A liberal construction does not restrict the statute, but
enlarges its scope and effect to effectuate the true legislative purpose.”); Castaneda
v. Tex. Dep’t of Agric., 831 S.W.2d 501, 503 (Tex. App.—Corpus Christi–Edinburg
1992, writ denied) (same). Green simply refused to interpret the Act to limit a public
employee’s cause of action for retaliation to a suit against individual supervisors
rather than against governmental entities. Green, 855 S.W.2d at 141. Castaneda
refused to add text onto the Act, specifically the additional requirement that the
whistleblower “initiate” a report. Castaneda, 831 S.W.2d at 503.
Second, Brickman and the majority opinion would sweep elected government
officials who do not act in their “official capacity”—as with Briggs here—into the
Act. Opinions relied on by the majority suggest this is not an intent behind the Act.
See Rangel, 131 S.W.3d at 547 (noting that “acts outside the scope of an employee’s
official duties are not acts of the State.”); Johnson, 48 S.W.3d at 895–96
(“[Whistleblower] has not directed us to any case, and our research has not revealed
any, in which a court has held that an elected official is part of the employing
governmental entity when he is acting in his private, rather than official, capacity.
Instead, the cases to which the Act has been applied have involved legal violations
committed by an official in the scope of the official’s duties, or by a public
employee.”).
–18–
Last, Brickman contradicts Texas law. How does a legislature intend a statute
to sweep up defendants who do not fall within the ambit of the statute? See TEX.
GOV’T CODE ANN. § 311.034 (“[A] statute shall not be construed as a waiver of
sovereign immunity unless the waiver is effected by clear and unambiguous
language.”); Johnson, 48 S.W.3d at 896 (“[L]egislative consent to suit must be by
clear and unambiguous language. There is nothing in the plain language of the Act
that would indicate clear legislative intent to waive sovereign immunity from suit
based on the private acts of elected officials.”).
The Court should not adopt Brickman’s judicial expansion of the Legislature’s
limited waiver of sovereign immunity provided by the Act.
***
In sum, I would hold as a matter of law that Briggs did not act in her official
capacity at the time she gave the information to the Denton Record-Chronicle. She
was not acting as the City when doing so. Hence, Briggs was not an “employing
governmental entity” under the Act. The Act cannot be construed to clearly and
unambiguously provide its considered and limited waiver of immunity based on
Keely Briggs’s personal conduct. I would dismiss appellees’ lawsuit.
But-For Causation
If the Act applied here, I would dissent due to the majority’s refusal to apply
controlling precedent of the Texas Supreme Court, Office of the Attorney General of
Texas v. Rodriguez, 605 S.W.3d 183 (Tex. 2020).
–19–
The majority asserts, “We find Rodriguez to be distinguishable from the
circumstances here.” See Majority Op. at 32. The majority distinguishes Rodriguez,
in part, because: “The difference here is that the two people, Leal and Collister, who
initiated the investigation into the procurement process even after the city council
previously found no issues, did know about appellees’ report as they were assistant
city attorneys and were involved in handling the reported violation and reviewing
documents Briggs disclosed to the newspaper. It was these reported investigations
into appellees that led to Langley’s decision to fire them.” Majority Op. at 32.
But Rodriguez provides:
In determining causation, we focus on those with authority in the
decision-making process that resulted in the adverse employment
action and whether there is evidence “that the decisionmaker or
decision-makers” acted with a retaliatory motive. Evidence of one
decisionmaker’s improper motive, however, cannot be imputed to all
of the decisionmakers—or to the final decision—without evidence
that the improper motive influenced the final decision.
Rodriguez, 605 S.W.3d at 193.
The facts the majority uses to distinguish Rodriguez directly implicate
Rodriguez. There is evidence that Deputy City Manager Langley and City Manager
Hileman were decisionmakers in terminating appellees’ employment. There is no
evidence that Langley or Hileman acted with retaliatory motive. There is no
evidence of improper motive concerning City Attorney Leal or Assistant City
Attorney Collister. Even if Leal or Collister harbored a retaliatory motive, such
motive could not be imputed to decisionmakers Langley and Hileman—or to their
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final decision to terminate appellees’ employment—without evidence that the
improper motive influenced the final decision. See id. There is no such evidence.
Rodriguez demands evidence, not speculation, surmise, or suspicion. Nor is there
other circumstantial evidence of but-for causation. See id. at 192–93 (citing City of
Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000) (noting circumstantial evidence
may show a retaliatory motive when it demonstrates: (1) knowledge of the report of
illegal conduct, (2) expression of a negative attitude toward the employee’s report
of the conduct, (3) failure to adhere to established company policies regarding
employment decisions, (4) discriminatory treatment in comparison to similarly
situated employees, and (5) evidence that the stated reason for the adverse
employment action was false.)).
The majority also distinguishes Rodriguez because appellees’ employment
was terminated for conduct occurring after their report. Majority Op. at 32. But see
id. at 196 (“The Whistleblower Act does not prohibit employers from terminating
an employee based on conduct that arises after the employee reports a legal
violation.”).
Accordingly, I would dismiss this case because the Act does not apply.
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Alternatively, if the Act applied, I would reverse the trial court’s judgment
and render judgment for the City because Rodriguez demonstrates there is
insufficient evidence of but–for causation.
/Bill Pedersen, III/
BILL PEDERSEN, III
JUSTICE
200945DF.P05
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