# the University of Texas at Austin v. Dijaira B. Smith > Texas Court of Appeals, 3rd District (Austin) · January 23, 2015 URL: https://www.frixlaw.com/law-library/cases/4044569 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 23, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4044569 ## Opinion text ACCEPTED 03-14-00509-CV 3878566 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/23/2015 1:03:50 PM JEFFREY D. KYLE CLERK No. 03-14-00509-CV IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICTAUSTIN, TEXAS AUSTIN, TEXAS 1/23/2015 1:03:50 PM ______________________________ JEFFREY D. KYLE Clerk THE UNIVERSITY OF TEXAS AT AUSTIN Appellant v. DIJAIRA B. SMITH Appellee ______________________________ On Interlocutory Appeal from Cause No. D-1-GN-13-004318 in the 2OOth District Court of Travis County, Texas, Honorable Judge Amy Clark Meachum, Presiding _________________________________ APPELLEE’S POST-SUBMISSION BRIEF ______________________________ JOHN JUDGE State Bar No. 11044500 JUDGE, KOSTURA & PUTMAN, P.C. The Commissioners House at Heritage Square 2901 Bee Cave Road, Box L Austin, Texas 78746 Telephone: 512/328-9099 Facsimile: 512/328-4132 Email: jjudge@jkplaw.com Counsel for Appellee Dijaira B. Smith ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL Appellee Dijaira B. Smith certifies that the following is a list of all parties and their counsel to the trial court’s judgment or order appealed from as required by Texas Rule of Appellate Procedure 38.1(a): Name of Party Name of Counsel 1. Plaintiff/Appellee John Judge Dijaira B. Smith State Bar No. 11044500 (“Di Smith”) JUDGE, KOSTURA & PUTMAN, P.C. The Commissioners House at Heritage Square 2901 Bee Cave Road, Box L Austin, Texas 78746 Telephone: 512/328-9099 Facsimile: 512/328-4132 Email: jjudge@jkplaw.com 2. Defendant/Appellant Erika Laremont The University of Texas at Austin State Bar No. 24013003 (“UT-Austin”) Assistant Attorney General Office of the Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 Telephone: 512/463-2120 Facsimile: 512/320-0667 Email: erika.laremont@texasattorneygeneral.gov ii _______________ _______________ John Ju udge State Bar B No. 11044500 The Commissionners Housee at Heritagge Square 2901 Bee B Cave R Road, Boxx L Austinn, Texas 788746 Telephhone: 5122/328-90999 Facsimmile: 5122/328-41322 jjudgee@jkplaw.ccom Counssel for Apppellee Dijaaira B. Smiith iii APPELLEE’S POST-SUBMISSION BRIEF To the Honorable Court: Having obtained leave, Appellee files her post- submission brief. A. Introduction Appellee’s citation to this Court’s opinion in Resendez v. TCEQ, 391 S.W.3d 312, 322 (Tex. App. – Austin 2012), and the Supreme Court’s more recent reversal of that ruling, TCEQ v Resendez, ___ S.W.3d ___ (Tex. No. 13-0094, Nov. 21, 2014), does not mean that the trial court’s denial of Defendant’s plea to the jurisdiction must be reversed in this case. To the contrary, the Supreme Court’s omission of certain facts from its per curiam opinion in TCEQ; facts that Appellee argued were favorably parallel to material facts her facts in her case; supports a conclusion that the Supreme Court’s opinion in TCEQ is materially distinguished. More importantly, this case contains significant jurisdictional facts that were not at all present in TCEQ; namely that the University of Texas, Office of Internal Audit (OIA) is specifically mandated to investigate violations of criminal law. Finally, a companion case handed down the same day as TCEQ demonstrates that the Supreme Court is not a blind denier of all waivers of sovereign or governmental immunity, as some government lawyers are wont to urge. Dalmuth v. Trinity Valley Community College, ___ S.W.3d ___ (Tex. 13- 0815, Nov. 21, 2014). 1 Accordingly, the Supreme Court’s surprise reversal of this Court’s ruling in Resendez does not mandate reversal of the trial court’s denial of Defendant’s plea to the jurisdiction in this case. B. Investigative Authority The statute provides a disjunctive definition of appropriate law enforcement authority (ALEA) with four distinctive elements; that the reporter believed in good faith the report recipient was a part of an entity authorized to: 1. Regulate under the law reported to have been violated; or 2. Enforce the law reported to have been violated; or 3. Investigate violations of criminal law; or 4. Prosecute violations of criminal law. GOVT. CODE, §554.002 (b) In this case the Office of Internal Audit is clearly authorized to investigate violations of criminal law involving third parties, such as contractors and their employees. This authority is spelled out in the Handbook of Operating Procedures. It extends to all individuals having a business relationship with the university outside of traditional employment; paid or unpaid; including, but not limited to, 2 affiliations associated with research, visiting scholars, employees of contractors, and volunteers. 1 Because the OIA is authorized to investigate violations of criminal law, it is, objectively and indisputably, ALEA. The power to investigate violations of criminal law, standing alone, is sufficient to make an entity ALEA. OAG v. Weatherspoon, ___ S.W.3d ___, 2014 WL 2708759 (Tex. App. – Dallas No. 05– 13–00632–CV June 16, 2014). Plaintiff’s subjective belief, based primarily on the auditors’ assurance that they were ALEA, was in fact and in law, objectively reasonable. C. Omitted Facts In Resendez, this court put some weight on a supervisor’s taunt to the whistleblowing reporter that if she believed that violations of law were occurring, she should “report it to management.” Resendez, 391 S.W.3d at 327. The TCEQ court did not find the taunting to be of significance. It is not mentioned in the per curiam opinion, and is therefore immaterial to a proper analysis of the ALEA definition in that case. Now, the distinction between a supervisory taunt and an auditor’s reassurance becomes critically significant. In this case the auditors assured Di 1 CR 323-26, Handbook of Operating Procedures, 3-1021, Suspected Dishonest or Fraudulent Activities 3 Smith that she was reporting to the proper authorities and that she was protected under the Whistleblower Protection Act.2 She was encouraged to, and did in fact report to people outside her immediate employer’s circle of influence; people who had authority investigate violations of criminal law; to right wrongs; to do justice. In contrast, the supervisor’s taunt in Resendez had the opposite effect. It served to keep the institutional wrongdoing in house and under the rug. Confining the reports of TCEQ crimes to TCEQ managers kept the damning information away from authorities that could deal with the violations in the terms of the law. Reporting TCEQ crime to TCEQ management would not protect the fisc in the same way that reporting UIL crimes to internal auditors authorized to investigate violations of criminal law would. For the same reason that the supervisor’s taunt of Resendez is immaterial to proper ALEA analysis in TCEQ, the auditors’ legally correct assurance that Smith could safely spill the beans on her bosses is highly significant. It is a material fact that mandates a finding and conclusion that sovereign immunity has been waived in this case. D. Okoli and Dalmuth 2 CR, 153, Id. p. 44, l. 6-17; CR, 179-180, Id. p. 70, l. 19-p. 71, l. 17 4 Read together with TDHS v. Okoli _____, ___ S.W.3d ___ (Tex. No. 10- 0567, 2014) and Dalmuth v. Trinity Valley Community College, ___ S.W.3d ___ (Tex. 13-0815, Nov. 21, 2014), TCEQ demonstrates that Di Smith’s reports to UT’s internal auditors were made to ALEA, and are protected under the Whistleblower Protection Act, GOVT. CODE. 554.001, et seq. Following the Needham to Gentilello line of cases, the Okoli and TCEQ opinions reaffirm that reports to internal authorities with powers to ensure agency compliance do not constitute reports to ALEA. These cases, however, do nothing to detract from a whistleblower’s legal protection for reporting to an entity, whether internal or external, that has is reasonably believed to possess investigative authority in criminal matters. The objective reasonableness of Smith’s belief in the appropriateness of her report to the Office of Internal Audit is proven through the free-standing criminal investigative authority is bestowed by university policy, HOP 3-1021; established under the Regents’ Rules, Rule 20201; which was adopted pursuant to statute, Texas EDUC. CODE, §§ 65.11 et seq., and 51.352. In Dalmuth the court observed that LOCAL GOVT. CODE, §§ 271.151(2) and 271.152, waive a local governmental entity’s immunity from suit for breach of a services contract. The Court tersely dealt with each of the defendant’s arguments that contrived to escape the clear and direct legislative waiver of immunity. 5 First, “services” clearly includes what an employee provides his employer by his efforts, and the statute waives immunity for claims under contracts for services. Second, although the specific LOCAL GOVT. CODE sub-chapter involved is entitled, “Acquisition, Sale, or Lease of Property, … [t]he heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.” Thus, the ordinarily broad and general usage of the term ‘services’ includes any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed, citing Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex. 1962). Third, although the firefighters’ of earlier precedent were civil servants, treated differently from other employees in some contexts, the law’s occasionally special treatment of civil service employees says nothing about whether they should be treated differently under the Act. Nothing in the Act itself indicates that its waiver of immunity is limited to suits by civil servants. Dalmuth proves that the Supreme Court can find a legislative waiver of immunity when the legislature provides one. It simply will not lightly imply one where it is not directly stated, or necessarily implied by clear legislative writ, and supported in the facts of the case at issue. The lower courts’ dismissal of the case pursuant to the employer’s plea to the jurisdiction was reversed, and without hearing oral argument, remanded to the trial court. 6 Likewise, L in n this case, the legislature has pplainly statted a waiveer of soverreign immuniity for publlic employ yees who caan state a cclaim undeer Chapter 554 of thee GOVERN NMENT COD DE. “A public employee e who w allegess a violatioon of this cchapter maay sue the employing state or loccal governm mental enttity for the relief provvided by thhis chapter. So overeign im mmunity iss waived annd abolisheed to the eextent of liiability for the relief allowed un nder this chhapter for a violationn of this chapter.” (eemphasis added) GOVT. CODE, §554 4.0035 The T trial co ourt has pro operly foun nd the OAII to be ALE EA. It hass the free standing g authority y, and a maandate to in nvestigate violations of criminaal law involvin ng financiaal impropriiety. E. Conclusion C n The T trial co ourt’s deniaal of Defen ndant’s pleea to the jurrisdiction sshould be upheld. Respectfully subbmitted, _______________ _______________ John Ju udge State Bar B No. 11044500 7 The Commissionners Housee at Heritagge Square 2901 Bee B Cave R Road, Boxx L Austinn, Texas 788746 Telephhone: 5122/328-90999 Facsimmile: 5122/328-41322 jjudgee@jkplaw.ccom Counssel for Apppellee Dijaaira B. Smiith ERTIFICA CE ATE OF S SERVICE I herreby certify y that on th he 18th day y of Decemmber, 20144 a true andd correct coopy of th he above an nd foregoinng Appelleee’s Post-SSubmission Brief was served onn all counnsel of recoord via elecctronic filing notice aas follows:: Erika Laremon nt Officce of the Attorney A General P.O. Box 1254 48 Austtin, Texas 78711-254 48 John Juddge Counsel for Appelllee Dijairaa B. Smith 8 CERT TIFICATE E OF COM MPLIANC CE This T Appelllee’s Post-Submissio on Brief coomplies witth the lenggth limitatioons of Texaas Rule of Appellate A Procedure P 9.4(i)(2) bbecause it ccontains 1,372 wordss, excludin ng the partts exempteed by Rule 9.4(i)(l). _____________________________ Johhn Judge Couunsel for A Appellee Dijaira B. Sm mith 9 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4044569. Public record. Not legal advice.