the University of Houston v. Stephen Barth

Opinion issued July 3, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00490-CV

THE UNIVERSITY OF HOUSTON, Appellant

v.

STEPHEN BARTH, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2001–34089

DISSENTING OPINION

I respectfully dissent. I disagree with the majority opinion’s determination that

the University waives its legal sufficiency challenge due to inadequate briefing. By

addressing each of the arguments presented by the parties, I would hold that the

evidence is legally insufficient to show that Stephen Barth, in good faith, reported a

violation of the law to an appropriate law enforcement authority, as those terms are

defined by the Texas Whistleblower Act (“the Act”). See Tex. Gov’t Code Ann .

§§ 554.001–.010 (Vernon 2004). The people to whom Barth reported the conduct by

Alan Stutts do not meet the definition of an appropriate law enforcement authority

under the Act. Also, Barth, an attorney with experience in the requirements of the

Act, cannot objectively show he had a good faith belief the people to whom he

reported the conduct were appropriate law enforcement authorities. Further, Barth’s

report to the police came after the alleged retaliatory acts and, therefore, Barth cannot,

as a matter of law, show that the retaliatory acts were caused by the report to the

police. I would therefore reverse and render judgment in favor of the University of

Houston (“the University”).

Waiver of Appeal

I respectfully disagree with the majority opinion’s determination that the

challenge to the legal sufficiency of the evidence is waived due to inadequate

briefing. According to the majority opinion, “the University makes no argument

directed toward Barth’s claim that his whistleblower claim is based on his report of

a violation of the law governing state contracts.” The majority opinion errs in finding

waiver because it finds waiver (A) based on the University’s failure to present Barth’s

theory for him; (B) based on the faulty premise that “the University makes no

argument” about the law governing state contracts; (C) despite no complaint of

inadequate briefing; and (D) despite the clear challenge to the elements of the claim.

These reasons are detailed more specifically below.

A. Waiver Based on Failure to Present Barth’s Theory for Him

The majority opinion finds waiver based on the University’s failure to present

Barth’s theory for him. It is apparent that the University did not present Barth’s

theory for him because that theory is immaterial to the University’s no-evidence

challenge. The University’s issue number one inquires, “Is there legally and factually

sufficient evidence to support the jury’s finding that Barth’s report was causally

linked to the alleged adverse actions taken against him?” The subpart of this issue

asks, “Were the individuals to whom Barth reported the alleged policy and/or legal

violations appropriate law enforcement officials under the Texas Whistleblower

Act?” In its opening brief, the University states its theory as follows:

The report must have been made to an appropriate law enforcement

official. Although Barth reported alleged violations of internal

University policy to several University officials, his only report to an

appropriate law enforcement official was his report to the University of

Houston Police Department. The alleged adverse actions for which

Barth sought judicial relief all occurred before his report to the UH

Police Department. Accordingly, Barth failed to demonstrate that but

for his report, the purported adverse employment actions would not have

occurred when they did.

The University explains that Randy Harris, Don Guyton, and Dennis Duffy are not

appropriate law enforcement officials under the Act because the only law to be

enforced was the Penal Code, and the people to whom Barth reported could not

enforce that law. With respect to Guyton’s audit team, the University contends,

Only when an audit uncovers evidence of suspected criminal activity

does the audit team turn the case over to UH police and may cooperate

with any police investigation. . . . None of the individuals to whom

Barth made the reports were responsible for investigating or enforcing

the law in question. . . . Instead, they were only charged with

cooperating with the Police Department’s investigation.

The elements of a claim under the Act that an employee must prove are that:

(1) he is a public employee; (2) he acted in good faith in making his report; (3) the

report involved a violation of law; (4) the report was made to an appropriate law

enforcement authority; and (5) he suffered retaliation as a result of making the

report. State v. Lueck , 212 S.W.3d 630 , 637 n.3 (Tex. App.—Austin 2006, pet. filed).

In its legal sufficiency issues, the University plainly challenges the second element,

which requires that the employee act in good faith in making the report; the fourth

element, which requires that the report be made to an “appropriate law enforcement

authority”; and the fifth element, which requires proof of causation, in that the

employee must show that he suffered retaliation as a result of making the report.

If the University’s arguments and authorities in the opening brief are correct—

that the only law violated was the Penal Code, that the people to whom Barth reported

were not appropriate law enforcement officials, that the report to the University police

came too late, and that Barth did not have a good faith belief that the people to whom

he reported were appropriate law enforcement officials—then the University must

prevail in its challenge to the legal sufficiency of the evidence. This is because the

University has shown that there is no evidence of the required elements that the report

must be made to an appropriate law enforcement authority or to someone whom Barth

believed, in good faith, to be an appropriate law enforcement authority, and that he

suffered retaliation as a result of making the report. See id. Thus, the legal

sufficiency challenge is adequate for the University to prove that there is no evidence

of the required elements of the cause of action.

Barth attempts to respond to the University’s claims by briefly presenting an

alternate argument concerning what the majority opinion calls “the law governing

state contracts.” In its entirety, the sole argument by Barth concerning civil law is:

In addition, Guyton’s position as Internal Auditor is established under

Chapter 2102 of the Texas Government Code. . . . Pursuant to Tex.

Gov’t Code § § 2102.007 and 2102.003, Guyton is authorized to

conduct audits including an “investigation described by Section

321.0136 .” Tex. Gov’t Code § 321.0136 defines investigation as “an

inquiry into specified acts or allegations of impropriety, malfeasance, or

nonfeasance in the obligation, expenditure, receipt, or use of state funds,

or into specified financial transactions or practices that may involve

such impropriety, malfeasance, or nonfeasance.” Malfeasance is defined

as “a wrongful or unlawful act; esp. wrongdoing or misconduct by a

public official.” Black’s Law Dictionary 976 (8th Ed.). A

reasonable interpretation of the scope of Guyton’s statutory duty is that

he is authorized to investigate violations of criminal and civil law

involving impropriety or malfeasance in the use of state funds.

The Act provides that “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); see Tex. Dep’t of Transp. v. Needham , 82 S.W.3d 314 , 317–18 (Tex.

2002) . A close examination of Barth’s argument reveals that Barth makes no claim

concerning the first alternative. More specifically, Barth makes no argument that

Guyton or Harris were authorized to “ regulate under or enforce ” either the rules that

apply to the University system or civil regulations over state contracts. See Tex.

Gov’t Code Ann. § 554.002(b) . Barth’s argument focuses on the second alternative,

which requires evidence that the person have been authorized to “investigate or

prosecute a violation of criminal law.” See Needham , 82 S.W.3d at 3 17–18 . By

referring to Guyton’s authority to investigate civil and criminal law, Barth

misinterprets the second alternative, which applies only to investigation or

prosecution of a violation of criminal law. See id. The University’s entire opening

brief repeatedly expresses its position that no person or entity, other than the

University Police, could “investigate or prosecute a violation of criminal law.” See

id. Because the only dispute concerns whether the people to whom Barth reported

could investigate or prosecute a violation of criminal law, the University did not

waive any argument concerning regulation or enforcement of a civil law.

The University’s legal sufficiency challenge was sufficient to attack the

elements of the claim, and Barth responded to that challenge with his theory of the

evidence. Nothing in the Rules of Appellate Procedure requires that the appellant

present the appellee’s arguments for the appellee. Thus, the majority opinion errs by

finding waiver based on the University’s failure to present Barth’s theory for him.

B. Waiver Based on Faulty Premise

The majority opinion finds waiver based on the faulty premise that “the

University makes no argument” about the laws governing state contracts. This claim

is erroneous because the University does respond to Barth’s arguments.

Although the majority opinion finds it fatal that the University purportedly did

not make an argument about laws governing state contracts, it is important to note,

as shown from the quoted excerpt above, that Barth does not make any specific

argument about state contracts. Barth’s focus is on the investigation of violations of

criminal and civil law involving impropriety or malfeasance in the use of state funds.

Moreover, Barth misinterprets the second alternative by suggesting that an

investigation into a violation of a civil rule or regulation would meet the requirements

of the Act. See id. T he Act plainly includes only the investigation or prosecution of

criminal law. Id.

Until Barth presents the alternate theory about civil law, there is no reason for

the University to mention state contracting laws, because that matter is irrelevant

under the University’s theory that only the law in the Penal Code applies to this

factual situation. However, after Barth presents his theory in his appellee’s brief, the

University’s reply brief responds to Barth’s position as follows:

Barth alternatively asserts that Harris, Guyton, and Duffy each in their

own right are appropriate law enforcement authorities under the Act .

As the Texas Supreme Court has emphasized, the particular law that the

employee reported was violated is crucial to the determination of

whether a report was made to an appropriate law enforcement official.

. . . The law in question here is Penal Code § 37.10, which prohibits the

knowing entry of false information in a government record. Barth

ignores this part of the inquiry in his brief, instead focusing on the

generalized authority of each individual to whom he made the reports .

(Emphasis added and citations omitted). The University, therefore, directly disputes

Barth’s contention by arguing that nothing in Guyton’s “generalized authority” would

make Guyton an appropriate law enforcement authority “in [his] own right.” The

majority opinion therefore errs by finding waiver based on the faulty premise that

Barth made an argument about laws governing state contracts and that the University

did not respond to the argument presented by Barth.

C. Waiver Despite No Complaint of Inadequate Briefing

Although a party is not required to assert waiver for an appellate court to

determine that a matter is waived, it is noteworthy that Barth never contends that the

University’s brief is inadequate in any way or that we should find any issue waived.

Barth understands the no-evidence challenge by responding with his claims

concerning that challenge. The majority opinion’s sua sponte finding of waiver is not

based on any complaint of inadequate briefing.

D. Waiver Despite Clear Challenge to Elements of Claim

The majority opinion finds waiver even though the University could prevail on

its legal sufficiency challenge if it established what it complained of in its opening

brief. It is undisputed that the University’s brief (1) plainly asserts an issue

challenging the legal sufficiency of the evidence concerning whether Barth’s reports

were to an appropriate law enforcement authority prior to the alleged retaliatory acts;

(2) includes citations to the record, legal authority, and analysis to support the issue;

(3) clearly expresses the position that the people to whom Barth reported the

purported violations were not the appropriate law enforcement officials under the Act

because the only applicable law is the Penal Code and none of the officials to whom

he reported could investigate violations of the Penal Code , even when considering the

rules that apply to the University system ; and (4) asserts Barth did not have a good

faith belief that the people to whom he made the report were the appropriate ones

under the Act. But this is not enough under the holding of the majority opinion.

According to the majority opinion, the University must also have presented Barth’s

alternate position about state contracting laws and then negated that theory by doing

more than affirmatively explaining why it is an incorrect theory. That is not the law

that pertains to the briefing requirements, which requires that we liberally construe

briefs and that the statement of an issue will be treated as covering every subsidiary

question that is fairly included. See Tex. R. App. P. 38.1(e), 38.9.

To support its theory that the University waived error by not attacking each

ground under which the jury made its liability finding, the majority opinion cites to

Britton v. Texas Department of Criminal Justice , 95 S.W.3d 676, 681 (Tex.

App.—Houston [1st Dist.] 2002, no pet.). That case holds that when a plea to the

jurisdiction is on multiple grounds and a trial court sustains it without specifying the

grounds, an appellant waives error by not challenging each of the alternate grounds.

Id. In Britton , we explained,

The rule that an appellant must attack all independent grounds

supporting a judgment has been applied in many instances. For

example, when a summary judgment motion alleges multiple grounds

and the order granting summary judgment does not specify the ground

on which the summary judgment was rendered, the appellant must

challenge and negate all summary judgment grounds on

appeal. . . . Similarly, an appellate court will overrule a challenge to fact

findings that underpin a legal conclusion or disposition when other fact

findings that support that legal conclusion or disposition go

unchallenged. . . . The same result obtains when more than one legal

conclusion independently supports a judgment or ruling, but the

appellant challenges only one of those legal conclusions on

appeal. . . . Likewise, when independent jury findings fully support a

judgment, an appellant must attack each independent jury finding to

obtain reversal.

Id. Britton is correct. See id.

The majority opinion misapplies both Britton and the underlying arguments

and law in this case. See id. Here, the jury charge asked the jury, “Did Stephen

Barth make a report of a violation of law in good faith to an appropriate law

enforcement authority?” The jury charge instructed that

“Violation of Law” refers to any violation of state or federal statute, an

ordinance of a local governmental entity, or a rule adopted under a

statute or ordinance. The University of Houston’s rules are adopted

under a statute.

There were no alternate questions that the jury could have answered to support

the judgment. The jury was asked a single question concerning whether there was a

report to an appropriate law enforcement authority. Thus, there was no alternate

question to support the judgment, as required for there to be any waiver under Britton .

See id .

The majority opinion’s finding of waiver is erroneous because (1) assuming

that an appellant must challenge each part of the definition of a term to avoid waiver,

the University did that here, and (2) the law of waiver does not require that an

appellant negate all theoretically possible alternative ways that are listed in a

definition of a term.

First, assuming that, as the majority opinion holds, the appellant must challenge

each part of the definition of the term to avoid waiver, the University did that here.

The definition of “Violation of Law” was challenged by the University in its

argument that only the Penal Code was violated, which addresses the portion of the

definition that states that the term “refers to any violation of state or federal statute,

[or] an ordinance of a local governmental entity.” The definition of “Violation of

Law” was further challenged by the University in its argument that no law was

violated because none of the University’s rules met the definition of law in the jury

charge, which defined law as “a rule adopted under a statute or ordinance.” Nothing

in the jury charge defined law as a state regulation. Thus, it was unnecessary for the

University to mention state regulations because that was not an alternative given to

the jury in the definition of “Violation of Law.” The University plainly argues that

the only law that the record shows could have been violated was the Penal Code and

that none of the University rules were laws. Thus, the University challenged every

theory under the definition of “Violation of Law” that was given to the jury.

Second, the law of waiver does not require that an appellant negate all

theoretically possible alternative ways that are listed in a definition of a term. All that

is required is that the appellant challenge the evidence and theories actually presented

to the trial court or jury. Here, the University presented its theory that the only

evidence in the record that met the definition of law was the Penal Code violations.

That challenge was sufficient to preserve the University’s legal-sufficiency

complaint.

Unlike the examples in Britton that concern the failure to challenge alternate

grounds that could support a judgment, here the University’s argument attacks each

of the elements of a claim under the Act. The majority opinion stretches the law of

waiver by now saying that if a party’s closing argument presents multiple alternate

theories to the jury concerning a definition of one of the terms, to preserve error, the

appellant will have to negate each of those alternate parts of the definition in its initial

briefing, or any error will be waived, even if the appellant properly challenges each

of the elements of the claim and presents its theory concerning the applicable

definition of the term. That is not what Britton holds. See id.

In short, the majority opinion violates the briefing requirements of the Rules

of Appellate Procedure. See Tex. R. App. P. 38.1(e), 38.9. The majority opinion

accuses the dissenting opinion of “improperly becom[ing] an advocate for the

University” and states, “This we cannot do.” However, it is well established that an

intermediate appellate court has the obligation to address the arguments of the parties,

and that this is something that we must do.

I would hold that the legal sufficiency challenge is not waived under these

circumstances, which undisputedly show that the University challenges the elements

of the cause of action, cites to the record, cites to case law, presents a cogent

argument, and presents a legally correct theory that could properly result in the

resolution of the appeal. See id. Because the University’s brief adequately challenges

the legal sufficiency of the evidence, the majority opinion errs by refusing to address

the points raised in the appeal.

The Whistleblower Act

The Whistleblower Act prohibits a state or local governmental entity from

taking adverse personnel action against “a public employee who in good faith reports

a violation of law by the employing governmental entity or another public employee

to an appropriate law enforcement authority.” See Needham , 82 S.W.3d at 317

(quoting Tex . Go v’t Code Ann. § 554.002(a)). We review de novo as a qu estion of

law the determination whether the reports made to the University employees were to

appropriate law enforcement officials. City of Houston v. Kallina , 97 S.W.3d 170,

173 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

The Act provides that “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).

A. The Definition of Law under the Whistleblower Act

To determine whether Barth reported the conduct to the proper law

enforcement authority, it is necessary to first examine what laws were violated.

Under the Act, “law” means a state or federal statute, an ordinance of a local

government entity, or a rule adopted under a statute or ordinance. Tex. Gov’t Code

Ann. § 554.001(1). An administrative rule or regulation is considered a law under

the statute. See City of San Antonio v. Heim , 932 S.W.2d 287 , 290–91 (Tex.

App—Austin 1996, writ denied). However, a violation of a department’s internal

policy is insufficient to meet the definition of law in the Act. Harris County Precinct

Four Constable Dep’t v. Grabowski , 922 S.W.2d 954, 956 (Tex. 1996). Here, there

is no dispute that a violation of the Penal Code or a violation of a civil administrative

rule or regulation is considered a law under the Act. The dispute is whether an

administrative rule of the university or the university system is considered a law

under the Act.

Rules enacted by the Board of Regents meet the definition of law under the

Act. Fazekas v. Univ. of Houston , 565 S.W.2d 299, 304 (Tex. App.—Houston [1st

Dist.] 1978, writ ref’d n.r.e.) (“Since the Board of Regents of the University of

Houston is authorized by statute to enact bylaws, rules and regulations necessary to

the government of the University, its rules are of the same force as would be a like

enactment of the legislature.”).

The University contends that no evidence shows “that the Board, pursuant to

its statutory authority, actually adopted the rule or policy” and that, without that

showing, the evidence is legally insufficient to show that the rule or policy was a law,

as defined by the Act. The University’s position is that the situation here is unlike

Fazekas , because in Fazekas there was evidence before the court that the University’s

Board of Regents had revised the policy at issue in that case, but here, no evidence

shows the Board enacted the rule. Id. Barth responds that all the University’s rules

are enacted under the Board of Regent’s statutory authority. Barth contends that the

Board of Regents instituted its policies through the University’s System

Administrative Memorandum, commonly referred to as the SAM, and the

University’s internal Manual of Administrative Policies and Procedures, commonly

referred to as the MAPP. I address the SAM and the MAPP separately.

1. The SAM

The University’s position is that the SAM was not promulgated pursuant to the

Board’s authority. The University points to testimony by Guyton, the University’s

internal auditor who reported to the Board of Regents. Guyton testified,

You have three levels of policies. You have the Board policies, which

the Board of Regents develops, and then you have the System policies,

which is the system, the University of Houston system, that level. And

then you have the campus. Each of the campuses are under the System.

So that’s the campus level policy.

The University contends, “Nowhere in this dialog does Guyton ever testify that the

Board of Regents adopted the MAPP or the SAM, approved them, or had any

authority over their creation in any way.”

The University, however, ignores Guyton’s testimony describing the Board of

Regents’s role over the rules in the SAM. The record shows,

[Attorney:] The Board has their own policies?

[Guyton:] Right.

[Attorney:] But pursuant to those policies, they are policies that are

established for the University of Houston System as a

whole, correct?

[Guyton:] That’s correct.

[Attorney:] And there are also policies that, pursuant to the Board’s

authority , that are policies and rules that are issued for each

component of the University of Houston System?

[Guyton:] That’s correct.

(Emphasis added.) The record therefore supports Barth’s position that the policies

in the SAM are set forth under the authority of the Board of Regents for the

University of Houston System as a whole. Thus, according to Guyton’s testimony,

a violation of the SAM would be sufficient to show a violation of the law under the

Whistleblower Act because the SAM is an administrative rule set by the Board of

Regents, which is considered a law under the Act. See Tex. Gov’t Code Ann.

§ 554.001(1); Fazekas , 565 S.W.2d at 304 .

2. The MAPP

Barth contends that the MAPP was enacted under the Board of Regents’

statutory authority. The record, however, has no evidence to support that assertion.

Guyton testified as follows:

[Guyton:] At this time the Manual of Administrative Policies and

Procedures. That’s the University of Houston’s

Administrative Policy Manual.

[Attorney:]Those are - those are enacted pursuant to the authority of

the Board of Regents?

[Guyton:] No, that’s the campus policies.

A violation of the MAPP, therefore, is a violation of internal policy, which is not

subject to the protections in the Act. See Kallina , 97 S.W.3d at 175 (“Neither was

adopted by the Houston City Council. It is quite clear that these manuals (and the

hundreds of pages they contain) reflect internal policies rather than rules

promulgated pursuant to an ordinance.”); Ruiz v. City of San Antonio , 966 S.W.2d

128 , 130 n.5 (Tex. App.—Austin 1998, no pet.) (“Nothing in the record indicates the

Department promulgated its internal policies pursuant to statute or ordinance.”).

B. Law Enforcement Authority in Whistleblower Act

Having determined that the SAM, regulations that govern state contracts, and

the Texas Penal Code are the pertinent laws, the next determination is whether Barth

reported the conduct was to an appropriate law enforcement authority. Barth

contends he had a good faith belief that his report to Guyton and Harris satisfied the

Act’s requirement that the report be made to an appropriate law enforcement

authority. The University, however, responds that none of the people to whom Barth

reported meet the definition of law enforcement authority under the Act, and the

report to the University Police Department came too late because it was after the

retaliatory acts claimed by Barth. I address separately each of the people to whom

Barth reported, Barth’s claim of good faith, and the ultimate report to the University

Police that came after the complained of retaliatory acts.

1. The Report to Guyton

Guyton, the internal auditor, would be an appropriate law enforcement

authority if he were authorized (1) to regulate or enforce the law alleged to be

violated in the report or (2) to investigate a violation of criminal law . See Tex. Gov’t

Code Ann. § 554.002. No evidence, however, shows that Guyton was an appropriate

law enforcement authority under the Act because (1) Guyton could not regulate or

enforce any civil law, including the SAM, and (2) Guyton could not investigate or

prosecute a violation of criminal law. See id.

a. Regulation or Enforcement of Civil Law

As discussed in more detail in the section regarding waiver of the appeal, Barth

never asserts that Guyton, as the internal auditor, has the authority to regulate or

enforce any civil law, which is the first alternative way to prove that someone is a law

enforcement authority under the Act. See id. Barth limits his argument to the second

alternative way to prove that someone is a law enforcement authority under the Act,

which pertains to the person’s authority to investigate a violation of criminal law.

Although Barth attempts to misapply the second alternative by referencing the

investigation of violations of civil law in addition to criminal law, the second

alternative plainly applies only to investigations of violations of criminal law. Tex.

Gov’t Code Ann. § 554.002 ( “[A] report is made to an appropriate law enforcement

authority if the authority . . . 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”); see Needham , 82 S.W.3d at 3 17–18 .

Assuming that Barth is attempting to assert that he could regulate or enforce

a civil rule or regulation, a close examination of the Government Code does not

support that position. Under section 2102.003, Guyton is authorized to conduct

audits including an “investigation described by Section 321.0136.” Tex. Gov’t

Code Ann. § 2102.003 (Vernon Supp. 2007). Section 321.0136 defines

“investigation” as “ an inquiry into specified acts or allegations of impropriety,

malfeasance, or nonfeasance in the obligation, expenditure, receipt, or use of state

funds, or into specified financial transactions or practices that may involve such

impropriety, malfeasance, or nonfeasance.” Tex. Gov’t Code Ann. § 321.0136

(Vernon 2005) (emphasis added). Guyton’s duties, according to the Government

Code, are to report directly to the state agency’s governing board, to develop an

annual audit plan, to conduct audits, to prepare audit reports, to conduct quality

assurance reviews, and to conduct economy and efficiency audits. See Tex. Gov’t

Code Ann. § 2102.007 (Vernon Supp. 2007). Although the Government Code

authorizes Guyton to inquire about financial impropriety or malfeasance, nothing in

the Code gives Guyton the authority to “regulate under” or “enforce” the rules in the

SAM or any civil state rule or regulation.

Guyton’s trial testimony is consistent with the authority described in the

Government Code. As Guyton testified, “Our Board of Regents policy on auditing

has full and free access to personnel, books records, and they’ve got to talk to us. . . .

I can’t fire anybody, or bring disciplinary action against them. All I can do is report

that.” Guyton thus acknowledges that he had no enforcement power. As Guyton’s

testimony and the Code make clear, Guyton is not a law enforcement authority under

the first alternative in the Act because Guyton could not regulate or enforce the SAM

or any civil rule or regulation . See Tex. Gov’t Code Ann. § 554.002 .

b. Investigation or Prosecution of Violation of Criminal Law

Under the second alternative to prove that the report was to an appropriate law

enforcement authority, the evidence must show that Guyton could investigate or

prosecute a violation of criminal law. See id. ; N eedham , 82 S.W.3d at 319 .

“ [G]eneral authority to regulate, enforce, investigate or prosecute” is “not enough.”

See N eedham , 82 S.W.3d at 319 (emphasis in original). Barth contends that the

conduct concerning the false statements on the payment vouchers constituted the

crime of “Tampering with Governmental Record,” as described in section 37.10 of

the Texas Penal Code. Tex. Penal Code Ann. § 37.10 (Vernon Supp. 2007).

The Government Code gives Guyton the power to investigate and inquire into

financial impropriety and malfeasance pursuant to his duties as an auditor, but it does

not authorize him to conduct criminal investigations for purposes of prosecution. See

Tex. Gov’t Code Ann. §§ 321.0136, 2102.007. Guyton explains that he investigates

suspected criminal activity “up to the point where we say there is a possibility” that

fraudulent activity has occurred and then turns it over to the police.

In his testimony,

Guyton describes his role as follows:

When we find evidence of suspected criminal activity, we turn it over to

the police and then assist them in their investigation. They’re the ones

who actually investigate the criminal activity. Guyton’s role in the investigation of impropriety or malfeasance is similar to

that of the supervisor in Kallina , which was found to be legally insufficient. See

Kallina , 97 S.W.3d at 173–74. As the Kallina court stated,

Here, the reported violation concerned theft. There was no evidence

Harris or anyone else in the City’s asset management department had (or

that Kallina believed they had) any authority to investigate, enforce, or

prosecute a violation of the state’s penal laws regarding property theft.

At most, the evidence showed Harris had administrative responsibility

for assets in the warehouse, regulated and enforced departmental rules for

protecting that property, and was required to investigate and report any

criminal activity . But Kallina conceded he knew Harris could only

forward evidence of theft to the police for actual investigation and

prosecution under state law. Needham holds this is not enough.

Id. (citing Needham , 82 S.W.3d at 321 ) (emphasis added). I would hold that although

Guyton was required to investigate for improprieties and malfeasance, power to

conduct an inquiry as an auditor does not, as a matter of law, show that he was

authorized to “investigate a violation of criminal law” or prosecute criminal law

because, upon any belief that a criminal law was violated, his role as the auditor was

to turn the matter over to the police for a criminal investigation. See Tex. Gov’t

Code Ann. § 554.002 . Guyton, thus, is not an appropriate law enforcement authority

as a matter of law.

2. The Report to Harris

To show he reported to a proper law enforcement authority, Barth relies on his

report to Harris, the University’s Senior Vice-President for Finance and

Administration, the chief financial officer for the University, and the person to whom

the University Police Department reported. But Harris was not an appropriate law

enforcement authority under the Act.

a. Regulation or Enforcement of Civil Law

One way for Harris to be an appropriate law enforcement authority is for the

evidence to show that he could “regulate under” or “enforce” civil regulations or the

SAM. See Tex. Gov’t Code Ann. § 554.002 . No one claims, and no evidence

shows, that Harris could regulate or enforce civil regulations concerning state

contracts. The question, therefore, is whether Harris could regulate under or enforce

the SAM, which are the rules that apply to the University of Houston system.

The only argument by Barth is the single sentence that states that Harris “had

the authority to regulate and enforce [University] Rules with respect to financial

matters and improprieties.” The record shows that Harris had the authority to enforce

“the University of Houston’s rules regarding financial affairs.” Nowhere in this

testimony does it show whether Harris was referring to the rules in the MAPP or the

SAM. If Harris was referring to the “rules” in the MAPP, his authority would not

meet the requirements in the Act because the rules in the MAPP, as explained above,

are not considered law under the Act. However, if Harris was referring to the “rules”

in the SAM, his authority would meet the requirements in the Act because the rules

in the SAM, as explained above, are considered law under the Act. Because the

evidence does not specify whether the “rules regarding financial affairs” are the type

of rules that would be considered laws under the Act, the record fails to show any

evidence that Harris could regulate or enforce any law.

b. Investigation or Prosecution of Violation of Criminal Law

Barth contends that Harris’s general oversight over the University Police

Department is sufficient to show that he could investigate a violation of criminal law.

The University’s position is that the administrative responsibility for the police

department did not give Harris any authority over the police investigative or

prosecutorial actions.

The mere fact that Harris provided the general oversight for the police

department does not give him the authority to investigate crimes. According to

testimony by Frank Cempa, a former University police officer, “the police department

was always autonomous in identifying criminal activity [and] present[ing] the findings

to the Harris County District Attorney’s Office.” The record shows that when Barth

reported his concerns about Stutts to Harris, Harris did not personally investigate

whether there were any violations of criminal law; rather, he referred Barth’s allegation

to Guyton and his audit team. To the extent that Harris had the authority to refer

concerns to the police or to Guyton, that power is similar to the investigatory power

found legally insufficient in Kallina because Harris’s role was limited to turning

information over to the police for the police to investigate. See Kallina , 97 S.W.3d at

173–74.

3. The Requirement to Report Violation to University Police

Barth points to section 01.C.04 of the SAM, which provides that “employees

shall report suspected criminal activity” to the appropriate campus police department;

the University System Director, Risk Management or Component Risk Management

liaison; the Director of Internal Auditing; the University General Counsel; or the

Component Chief Financial Officer. Barth contends that this “System Rule on

reporting suspected criminal activity provides that a report to Harris, Guyton, Duffy or

the [University Police Department] triggers a report to all of them.” However, nothing

in the Act provides that the requirements are satisfied by a report to someone who is

not an appropriate law enforcement authority, but is required to report the conduct to

an appropriate law enforcement authority. See Needham , 82 S.W.3d at 32 1–22

(holding that Needham’s “belief that [the Texas Department of Transportation] could

forward information to another entity to prosecute a drunk driving allegation” was

insufficient to show good faith by Needham).

The record shows that section 01.C.04 of the SAM, to which Barth points,

plainly gives the police department the exclusive authority to conduct the investigation.

Section 3.9 of the SAM states, “If the campus police department determines that the

crime committed is against the university, the campus police department shall file

charges.” Further, section 3.4 allows the campus police to request assistance from the

auditor “to assist in determining whether assets were misappropriated and to determine

the extent or estimated amount of loss.” These sections plainly show that the entity

responsible for conducting the criminal investigation is the University Police

Department, with others to assist it by providing information to the Department upon

its request. I would hold that no evidence shows that Harris could investigate or

prosecute a violation of criminal law. See T ex. Gov’t Code Ann. § 554.002.

C . Good Faith

The University contends that based on Barth’s experience and training, Barth

could not objectively have had a good faith belief that he was making a report to an

appropriate law enforcement authority. An employee need only show a good faith

belief. Tex. Go v’t Code Ann. § 554.002(a). “Good faith” under the Act 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. City of Weatherford v. Catron , 83 S.W.3d 261,

269 (Tex. App.—Fort Worth 2002, no pet.). “The test for good faith belief regarding

an appropriate law enforcement authority consists of a subjective and objective prong,

both of which must be satisfied in order to satisfy the good faith standard.” Tex. Dep’t

of Assistive and Rehabilitative Servs. v. Howard , 182 S.W.3d 393, 402 (Tex.

App.—Austin 2005, no pet.). Here, Barth’s testimony established the subjective prong.

However, no evidence meets the objective prong.

The objective prong requires that the employee’s belief that the report was made

to an appropriate law enforcement authority be reasonable in light of his training and

experience. Wich ita County v. Hart , 917 S.W.2d 779, 784 (Tex. 1996). Consequently,

those who are trained in law enforcement and investigation are held to a higher burden

in establishing the reasonableness of their belief of criminal law violations. Id. at 785 .

For example, the reasonableness of a peace officer’s belief that a law has been violated

will be examined more closely than will the belief of one in another, non-law-enforcement profession. Id. ; Grabowski , 922 S.W.2d at 956 (holding Grabowski did

not meet second prong because his belief was not reasonable “in light of his experience

as a peace officer” with “more experience than those in other professions in deciding

whether an act is a violation of law”).

Barth was a practicing attorney, a faculty member at the University, a member

of the University Faculty Senate, and had experience with the requirements of the Act.

I would hold that the evidence is legally insufficient to show that Barth’s belief was

objectively reasonable in light of his training and experience as an attorney who has

familiarity with the requirements of the Act. See Grabowski , 922 S.W.2d at 956 ; Hart ,

917 S.W.2d at 784 . I would hold that Barth could not objectively have had a good faith

belief that he was making a report to an appropriate law enforcement authority and,

therefore, that the evidence is legally insufficient to establish a violation of the Act.

D. Causation

Barth did ultimately report the purported violations to the University Police

Department, but that report came too late because it did not occur until after the

retaliatory acts of which he complains occurred. The University is correct that the

report to the University Police did not occur until June 23, 2000, which is after the

complained of retaliatory acts, because the last retaliatory act occurred on May 8, 2000,

when Barth received the evaluation for the 1999–2000 school year.

Because the report

to the University police about Stutts’s conduct did not occur until after the complained-of acts against Barth by Stutts occurred, the evidence is legally insufficient to meet the

causation element of the Act. Further, the evidence is legally insufficient because no

evidence establishes any of the challenged elements of the Act. More specifically and

as explained above, no evidence shows that Barth made a report to an appropriate law

enforcement authority or that he acted in good faith in making the report to a person

he believed was an appropriate law enforcement authority.

Conclusion

I would reverse the judgment of the trial court and render judgment in favor of

the University.

Elsa Alcala

Justice

Panel consists of Justices Nuchia, Alcala, and Higley.

Justice Alcala, dissenting.