DISMISS and Opinion Filed February 3, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01170-CV
CITY OF FORT WORTH, Appellant
V.
WILLIAM BIRCHETT, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-06941
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Goldstein
Opinion by Chief Justice Burns
Appellant appeals from the trial court’s order denying its second plea to the
jurisdiction in the underlying whistleblower lawsuit. Because it appeared the
City’s second plea to the jurisdiction was essentially a motion to reconsider the
denial of its first plea, we questioned our jurisdiction. As directed by this Court,
the parties to filed letter briefs addressing the jurisdictional issue.
Background
William Birchett, former Senior Information Technology Solutions Manager
for the City of Fort Worth, discovered that the City’s cybersecurity was allegedly
severely compromised. He reported his findings and a plan of remediation to the
appropriate personnel. When the City failed to remedy the problem, Birchett
reported the violations to law enforcement agencies. He was subsequently
terminated by City Official Kevin Gunn. In 2019, Birchett filed the underlying
case pursuant to the Texas Whistleblower Act. See TEX. GOV’T CODE ANN.
§ 554.002.
The City filed its first plea to the jurisdiction in 2019. The trial court denied
the motion and the City appealed. We affirmed. See City of Fort Worth v.
Birchett, No. 05-20-00265-CV, 2021 WL 3234349 (Tex. App.—Dallas July 29,
2021, pet. denied). The City filed a second plea in September 2022. This appeal
concerns the denial of that plea.
The Law
A party may appeal an interlocutory order that grants or denies a plea to the
jurisdiction by a governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(8). However, a party may not bring an interlocutory appeal of an order
denying a second plea to the jurisdiction that merely restates the same grounds as
the earlier plea to the jurisdiction. See City of Houston v. Atser, L.P., 403 S.W.3d
354, 359 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (op. on reh’g). As the
supreme court has noted, “allowing interlocutory appeals whenever a trial court
refuses to change its mind ... would invite successive appeals and undermine the
statute’s purpose of promoting judicial economy.” Bally Total Fitness Corp. v.
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Jackson, 53 S.W.3d 352, 358 (Tex. 2001). Where an amended plea makes a new
argument but does not assert a new ground, the amended plea is substantively a
motion to reconsider, the denial of which is not subject to an interlocutory appeal.
See City of Houston v. Est. of Jones, 388 S.W.3d 663, 667 (Tex. 2012).
Discussion
In its first plea to the jurisdiction, the City asserted the trial court lacked
subject matter jurisdiction because Birchett did not make good-faith reports of a
violation of law to an appropriate law enforcement authority, was terminated for
performance shortcomings, not reporting violations of law, and, after his
termination, failed to properly initiate the City’s whistleblower grievance
procedure. In its brief filed in the first appeal, the City’s third issue stated: “Where
Birchett alleges that his supervisor learned details about the audit from a memo
stating that someone other than Birchett brought the cybersecurity issues to the
auditor’s attention, has he sufficiently alleged a causal connection between his
alleged statements to the auditor and his termination.?” In addressing the City’s
third issue, we stated the following:
Causation as to Termination Claim
In its order denying the City’s plea, the trial court stated, “[Birchett]
has produced sufficient evidence that he was placed on administrative
leave and terminated in retaliation for his report.” In its third issue—
which addresses Birchett’s termination claim, but not his
administrative leave claim—the City argues, in essence, that the trial
court erred in denying the plea on the termination claim because
Birchett was not terminated because of any protected report. In other
words, the City challenges causation.
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Id. at *11. We held – “In light of the absence of evidence from the City that Gunn
did not know about Birchett’s report, we conclude that the City failed to meet its
burden to rebut the presumption of causation under 554.004(a) as to Birchett’s
termination claim. Under such circumstances, Birchett was not required to come
forward with his own evidence that Gunn knew of Birchett’s reports when he
terminated him when Birchett responded to the City’s plea.” Id. at *12.
In its second plea to the jurisdiction, filed more than one year after this
Court’s opinion issued affirming the denial of its first plea, the City asserted
Birchett cannot establish causation in the absence of Gunn’s knowledge and
Gunn’s testimony rebuts any presumption that Birchett was terminated for the
report he filed. The City explains in its second plea the difference between the first
and second pleas as follows:
This plea differs from the City’s first Plea because in filing this Plea,
the City heeds the rulings of this Court and the Dallas Court of
Appeals on the first Plea that affirmative evidence showing the
decision- maker’s lack of knowledge of Birchett’s alleged reports was
necessary. That evidence is provided in support of this Plea.
The City asserts the first plea addressed the “presumption of causation” while the
second plea addressed the “ultimate issue regarding causation and provided proof
that the decision-maker, Kevin Gunn, did not know about Birchett’s alleged
reports.”
Birchett disputes the City’s characterization of its second plea. As support,
it quotes the following language from the City’s brief in the first appeal:
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The evidence establishes that Birchett was terminated for failing to
ensure compliance with applicable guidelines and there is no evidence
in the record that the decision-maker believed Birchett had reported
violations of law to a law enforcement authority, therefore, there is no
evidence supporting a causal-connection between the alleged
statements and Birchett’s termination.
At the hearing on the second plea, counsel for Birchett argued that the City cannot
go back and try to fix the errors it made the first time around (ie. – failing to rebut
the presumption that termination was the result of the reports of violations Birchett
had made.). We agree.
We conclude both pleas challenged the sufficiency of the evidence on
causation. Moreover, we addressed the issue of causation in the first appeal.
Accordingly, we hold the City’s second plea to the jurisdiction is nothing more
than a motion to reconsider the denial of its first plea to the jurisdiction. Because
an interlocutory appeal is not available in such circumstance, we dismiss the appeal
for want jurisdiction. See TEX. R. APP. P. 42.3(a).
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
221170F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF FORT WORTH, Appellant On Appeal from the 162nd Judicial
District Court, Dallas County, Texas
No. 05-22-01170-CV V. Trial Court Cause No. DC-19-06941.
Opinion delivered by Chief Justice
WILLIAM BIRCHETT, Appellee Burns. Justices Molberg and Goldstein
participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee WILLIAM BIRCHETT recover his costs of
this appeal from appellant CITY OF FORT WORTH.
Judgment entered February 3, 2023
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