concurring.
Although I acknowledge that the Texas Supreme Court has not formally recognized the cause of action we address here today, I write separately urging it to do so. The sole question on this appeal is whether we should recognize the private whistleblowing cause of action the Supreme Court declined to recognize (“at this time on these facts”) in Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 725 (Tex.1990). Believing this case meets all the elements of the cause of action clearly outlined in Justice Doggett’s concurrence, if empowered to do so I would reverse the trial court’s decision and remand for trial on the merits.
STANDARD OF REVIEW
The trial court dismissed this ease after granting defendant’s special exceptions and plaintiffs failure to replead his petition. In this situation, we accept as true all facts pled to determine whether plaintiffs pleadings make out a cause of action. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex.Civ.App.—Corpus Christi 1978, writ ref'd n.r.e.).
CAUSE OF ACTION
The cause of action for whistleblowing in a private work environment was carefully outlined in Justice Doggett’s Winters concurrence, an opinion now four years old. To make out a prima facie case, the plaintiff must show that the principal motivation for employer retaliation was the employee’s report, either internal or public, of activities within the workplace that would have a probable adverse effect upon the public. Winters, 795 S.W.2d at 732. The employee must make a two-prong showing of good faith: (1) that the report of employer activity was in good faith and not the result of malice, spite, jealousy, or personal gain; and (2) that the employee had reasonable cause to believe the activity would have an adverse effect on the public. Id. . Actual violation of a statute is not necessary, but plaintiff must show:
[t]he asserted wrongdoing about which complaint is made must be demonstrated to contravene substantial societal concerns reflected in our state and federal constitutions and statutes, judicial decisions and administrative decisions, rules and regulations, or other statements of public policy. Winters, 795 S.W.2d at 732.
Mr. Burgess’ petition makes out a cause of action under these criteria.
It is high time Texas recognized this protection for employees acting in the public interest. In the four years since Winters was decided the legislature has failed to act *557in this vital area. Under these circumstances a judicially-created cause of action is not only appropriate, but critical. The cause of action has been clearly set forth, it is thoughtfully crafted, and I comprehend no reason for further delay in incorporating it into our law. Although I would reverse this case and remand it for trial on the merits if it were within my mandate as an intermediate appellate judge to do so, I recognize this is a power given only to our high court. For that reason, I concur in the majority opinion.