the City of Celina, Texas v. Shea Scott

AFFIRMED and Opinion Filed April 13, 2022

S In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00823-CV

THE CITY OF CELINA, TEXAS, Appellant

V.

SHEA SCOTT, Appellee

On Appeal from the 44th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-20-18195

MEMORANDUM OPINION

Before Justices Carlyle, Smith, and Garcia

Opinion by Justice Smith

Appellee Shea Scott sued the City of Celina under the Texas Whistleblower

Act (the Act) after the City terminated him. The City filed a plea to the jurisdiction,

which the trial court denied. In three issues, the City argues Scott failed to invoke

the protections of the Act because he did not make a report to an appropriate law

enforcement authority. We disagree with the City’s interpretation of the Act and

cited case law. We affirm the trial court’s order denying the City’s plea to the

jurisdiction. We deny Scott’s request to sanction the City for filing a frivolous

appeal.

Background

The following facts are from Scott’s original and amended petitions. Scott

was the City’s assistant chief of police. On June 8, 2020, Scott received emails from

Sam Jeter, the husband of Jennifer Jeter, who was the City’s human resources

director. The emails indicated that Jennifer committed criminal family violence by

pointing a loaded gun at Sam and possessed illegal drugs and drug paraphernalia.

Because Scott received information about criminal conduct, he in good faith

believed the law required him to report the allegations to a law enforcement agency.

After Scott drafted a criminal complaint, he gave it to Detective Jeremiah Phillips in

the Criminal Investigation Division (CID) and instructed Phillips to file it with the

proper law enforcement agency. At that time, Scott was unsure where the Jeters

lived. Phillips determined they lived in Denton County and subsequently filed the

criminal complaint with the Denton County Sheriff’s Office. Scott also filed an

internal complaint with the police chief regarding Jennifer’s conduct.

The City hired outside counsel to investigate the allegations against Jennifer.

After the City discovered false information on her resume, Jennifer resigned on July

2, 2020. Outside counsel then continued to investigate the police department, the

police chief, and Scott.

According to Scott, the city manager told him not to investigate “my

directors” and that Scott should have violated the law and kept the allegations against

Jennifer a secret instead of reporting them. The city manager expressly prohibited

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Scott or other members of the police department from reporting misconduct by any

City employee at the director level or above without the city manager’s approval.

On August 3, 2020, the City hired an interim police chief. On August 12,

2020, the City placed Scott on administrative leave and demanded resignation or

face termination. The City did not identify any violation or justification for the

decision. Scott refused a severance offer and requested reinstatement. Instead of

reinstatement, the interim police chief drafted a list of grievances against Scott

allegedly based on audits performed by an independent auditor and the human

resources department. Scott was never provided copies of these audits. Scott

responded to the grievances and stated the real reason for the grievances was

retaliation for reporting Jennifer’s alleged criminal conduct.

On October 5, 2020, Scott received written notice of his termination. He

timely appealed his termination, participated in a hearing, but did not receive a

decision.

Scott subsequently filed suit under the Act. He believed he was wrongfully

terminated because he in good faith reported a violation of law by another public

employee to an appropriate law enforcement authority. Scott attached to his petition

the emails from Sam, and a copy of his “FORMAL COMPLAINT,” dated June 9,

2020, to the city manager, the police chief, and the city attorney. Scott stated he was

making the complaint “as I have exhausted all options to remedy the situation within

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my chain of command.” His complaint described the drugs and drug paraphernalia

at Jeters’ home, along with details about Jennifer pointing a loaded gun at Sam.

The City filed its answer and plea to the jurisdiction on January 13, 2021. The

City alleged Scott failed to sufficiently plead facts to waive the City’s immunity.

The City argued Scott’s petition “affirmatively demonstrates [he] did not make a

good faith report to an appropriate law enforcement agency.” The City asserted

Scott’s actions were insufficient to invoke the Act because Scott made an internal

complaint with the City and instructed a subordinate officer to file a criminal

complaint with an unspecified law enforcement agency. Scott subsequently

amended his petition, elaborated on his two written reports, and added a third oral

report.

In the amended petition, Scott explained Phillips was his subordinate. It was

within Scott’s authority to delegate tasks, such as determining the proper jurisdiction

for filing criminal complaints. If after receiving a criminal complaint Phillips

determined the proper authority was another police department, it was within

Phillips’ normal scope and authority to forward the complaint to the proper law

enforcement authority. Within forty-eight hours, Phillips determined the Jeters lived

in Denton County, and he forwarded Scott’s written report to the Denton County

Sheriff’s Office.

After the Denton County Sheriff’s Office received the report, a detective in

the office contacted Scott. Scott then provided an oral report of the alleged criminal

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conduct, including the source of the allegations and other related information. The

City did not amend its plea to the jurisdiction to address this third oral report.

Scott filed a response to the City’s plea to the jurisdiction and sought sanctions

under rule 13. After a hearing, the trial court denied the City’s plea to the

jurisdiction. The trial court stated in the order that Scott’s oral discussion with the

Denton County Sheriff’s Office detective and his written reports to Phillips and the

City’s police chief satisfied “the Texas Whistleblower Act’s requirement for a report

to an appropriate law enforcement agency.” The court denied Scott’s rule 13 motion

for sanctions. This appeal followed.

Standard of Review

A plea to the jurisdiction challenges the court’s authority to decide a case.

Heckman v. Williamson Cty., 369 S.W.3d 137, 149 (Tex. 2012). We review a plea

questioning the trial court’s subject matter jurisdiction de novo. Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus on the plaintiff’s

petition to determine whether the pleaded facts affirmatively demonstrate that

subject matter jurisdiction exists. Id. We construe the pleadings liberally in favor

of the plaintiff. Id.

If a plea to the jurisdiction challenges the existence of jurisdictional facts, the

trial court may consider evidence and must do so when necessary to resolve the

jurisdictional issues raised. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 555 (Tex. 2000). When evidence is submitted that implicates the merits of the

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case, our standard of review generally mirrors the summary judgment standard under

Texas Rule of Civil Procedure 166a(c). Miranda, 133 S.W.3d at 228; see TEX. R.

CIV. P. 166a(c). The burden is on the governmental unit to present evidence to

support its plea. Miranda, 133 S.W.3d at 228. If the governmental unit meets this

burden, the burden shifts to the plaintiff to show that a disputed material fact exists

regarding the jurisdictional issue. Id. We take as true all evidence favorable to the

plaintiff and indulge every reasonable inference and resolve any doubts in the

plaintiff’s favor. Id. If the evidence creates a fact question regarding the

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and

the fact question will be resolved by the fact-finder. Id. at 227–28. If the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the

trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

Generally, governmental entities are immune from suit and liability under the

doctrine of sovereign immunity. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).

Sovereign immunity from suit deprives a court of subject matter jurisdiction and is

properly asserted in a plea to the jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635,

638 (Tex. 2004); Miranda, 133 S.W.3d at 225–26. The Act, however, waives

immunity from suit to the extent a governmental entity is liable under its provisions.

See TEX. GOV’T CODE ANN. § 554.0035.

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Discussion

In three issues, the City argues Scott’s two internal reports within the Celina

police department and his phone call with the Denton County Sheriff’s Office do not

qualify as reports to an “appropriate law enforcement agency” to satisfy section

554.002(b) of the government code. See TEX. GOV’T CODE ANN. § 554.002(b).

Scott responds that the City relies on inapplicable case law and ignores a plain

reading of the statute that supports the trial court’s denial of the City’s plea to the

jurisdiction.

The standard for a violation of the Act appears in section 554.002(a). Id.

§ 554.002(a); Lueck, 290 S.W.3d at 881. The elements of a Whistleblower claim

are jurisdictional and may not be waived. Univ. of Houston. v. Barth, 403 S.W.3d

851, 854 (Tex. 2013) (per curiam). Under the Act, a plaintiff is required to prove:

(1) that he was a public employee, (2) that he reported a violation of

law in good faith, (3) that the violation of law reported was committed

by his employing governmental entity or another public employee, (4)

that the report was made to an appropriate law enforcement authority,

and (5) that his employing governmental entity took an adverse

personnel action against him because of the report.

Tex. Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 849 (Tex. App.—Austin

2007, pet. denied); see TEX. GOV’T CODE ANN. § 554.002(a).

The City only challenges whether Scott’s reports were made to an appropriate

law enforcement authority. Section 554.002(b) defines “appropriate law

enforcement authority” as follows:

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[A] report is made to an appropriate law enforcement authority if the

authority is 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). An employee’s belief is in good faith if: (1)

the employee believed the governmental entity was qualified, and (2) the employee’s

belief was reasonable in light of the employee’s training and experience. Tex. Dep’t

of Human Servs. v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014).

To support its position, the City relies on a line of Texas Supreme Court cases

holding that internal reports to another governmental employee, even if that

employee is a supervisor tasked with ensuring internal compliance, are not reports

to an appropriate law enforcement authority.1 The City argues Scott’s reports within

the City’s police department were insufficient to trigger the Act’s protections.

None of the supreme court cases the City cites involved a police officer

reporting a criminal act. Rather, the cases involved internal reports to individuals

within the governmental entity whom the court determined did not possess outward-

1

See, e.g., Ysleta Indep. Sch. Dist. v. Franco, 417 S.W.3d 443, 445–46 (Tex. 2013) (per curiam) (in the

school context, reporting to school officials not charged with enforcing laws outside the district falls short

of what the Act requires); Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 655 (Tex. 2013) (per

curiam) (same); Univ. of Houston v. Barth, 403 S.W.3d 851, 855–58 (Tex. 2013) (per curiam) (holding that

none of the four people Barth reported alleged violations of the penal code—the university’s general

counsel, CFO, internal auditor, and associate provost—could have investigated or prosecuted criminal law

violations against third parties outside the university); Tex. A & M Univ.–Kingsville v. Moreno, 399 S.W.3d

128, 130 (Tex. 2013) (per curiam) (holding evidence by an employee at state university showing she

reported an alleged violation of law to an authority that only oversaw internal university compliance was

jurisdictionally insufficient under the Act); Gentilello, 398 S.W.3d at 689 (medical school faculty member

overseeing federal compliance regulations did not have “law enforcement status” for reports of federal law

violations); Lueck, 290 S.W.3d at 885–86.

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looking enforcement or regulatory powers. See, e.g., Gentilello, 398 S.W.3d at 686,

689 (“[F]or an entity to constitute an appropriate law-enforcement authority under

the Act, it must have authority to enforce, investigate, or prosecute violations of law

against third parties outside of the entity itself, or it must have authority to

promulgate regulations governing the conduct of such third parties.”).

To the extent the City argues internal complaints are insufficient, the supreme

court has twice rejected the conclusion that a report under the Act “can never be

made internally.” Id. at 686 (emphasis in original); Okoli, 440 S.W.3d at 616–17.

In fact, the supreme court has provided the following hypothetical involving a police

officer:

A police department employee could retain the protections of the

Whistleblower Act if she reported that her partner is dealing narcotics

to her supervisor in the narcotics or internal affairs division. In such a

situation, the employee works for an entity with authority to investigate

violations of drug laws committed by the citizenry at large.

See Okoli, 440 S.W.3d at 611; Gentilello, 398 S.W.3d at 686. The Okoli court

further recognized that the whistleblower in the hypothetical was reporting a

violation of law to a police officer, and “a police officer is authorized to investigate

violations of law and to cite or arrest persons suspected of committing such

violations.” Okoli, 440 S.W.3d at 611.

Scott’s reports to Phillips and the police chief regarding Jeter’s alleged

criminal violations are the types of internal reports that fall within the supreme

court’s hypothetical. Scott made reports to individuals who were “part of a

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governmental arm or entity authorized to conduct criminal law investigations.” See

Okoli, 440 S.W.3d at 617. The Celina police department, as a governmental arm or

entity, had “outward-looking powers” and authority to enforce and investigate

violations of the Texas Penal Code. See, e.g., Raymondville Indep. Sch. Dist. v. Ruiz,

No. 13-19-00597-CV, 2021 WL 822699, at *3 (Tex. App.—Corpus Christi-

Edinburg Mar. 4, 2021, pet. denied) (mem. op.) (affirming denial of school district’s

plea to the jurisdiction when school district truancy officer reported criminal

violation to police chief, as his immediate supervisor, and RISD police department

had authority to investigate such violations). Thus, Scott pleaded sufficient facts

establishing that he in good faith filed two internal reports with appropriate law

enforcement authorities.

In reaching this conclusion, we reject the City’s argument that section

554.002(b)(2) has a geographical requirement limiting an officer’s ability to

investigate or prosecute criminal law violations. The City asserts that even if the

statute allowed Scott to make an internal report, his reports were still not made to an

“appropriate law enforcement authority” because the Celina police department did

not have jurisdiction to investigate alleged criminal violations by a city employee

that occurred outside its jurisdiction. The City, however, admits there are no cases

holding that geography is relevant under the Act, but instead cites two cases “which

clearly assume that is the case.” We are unpersuaded by the City’s assumptions.

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In Tharling v. City of Port Lavaca, 329 F.3d 422 (5th Cir. 2003), a federal

case not binding on this Court, the Fifth Circuit concluded an officer was entitled to

protection under the Act because he reported an alleged criminal violation to the

Texas City police department, the police department “charged with enforcing the

law in Texas City, where the violation occurred.” Id. at 430. The City emphasizes

the “where the violation occurred” language; however, the court’s holding was not

dependent on this fact and is dicta. Similarly, we reject the City’s reliance on

Connally v. Dallas Independent School District, 506 S.W.3d 767, 783 (Tex. App.—

El Paso 2016, no pet.) (acknowledging there was no dispute between the parties that

the DISD police department had authority to investigate penal code violations

occurring within its jurisdiction involving DISD employees or third parties).

A plain reading of the statute requires a person to make a report to an entity

“authorized to investigate or prosecute a violation of criminal law.” TEX. GOV’T

CODE ANN. § 554.002(b)(2) (emphasis added). It does not require that the entity or

agency has authority to investigate or prosecute the violation at issue. The

legislature did, however, include such a limitation in subsection (b)(1), which

requires a person to make a report to an entity “authorized to regulate under or

enforce the law alleged to be violated in the report.” Id. § 554.002(b)(1) (emphasis

added).

We endeavor to read statutes contextually to give effect to every word, clause,

and sentence. See In re Office of Attorney Gen., 422 S.W.3d 623, 629 (Tex. 2013).

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We presume the legislature included each word in the statute for a purpose, and

words not included were purposefully omitted. ExxonMobil Pipeline Co. v.

Coleman, 512 S.W.3d 895, 899 (Tex. 2017). The statutory text is clear. Had the

legislature intended to require a person to make a report to an entity authorized to

investigate or prosecute the violation of criminal law alleged to be violated in the

report, it could have added such language to (b)(2). Because it did not, we decline

the City’s invitation to read language into the statute. We conclude Scott satisfied

section 554.002(b)(2) as to his reports to Detective Phillips and the police chief.

Accordingly, where Jeter lived and where the crimes allegedly occurred is not

relevant to triggering the Act’s protection under section 554.002(b)(2). We overrule

the City’s first and second issues.

In its third issue, the City argues Scott’s conversation with the Denton County

Sheriff’s Department is not entitled to protection because the Sheriff’s Department

initiated the phone call to discuss Scott’s written report, which had been forwarded

to the office. The City provides no authority for its propositions that section

554.002(b) does not apply if an entity reaches out to a party to discuss a report or

that section 554.002(b) does not apply to any further statements a plaintiff makes

once an investigation under the Act begins.

If a report satisfies section 554.002(b)(1) or (2), then the Act applies to the

report. The plain language of the statute does not limit “report” to only the first

report starting the investigation or prohibit protection under the Act to subsequent

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oral statements an employee makes to an entity. To the contrary, there is case law

in which the court analyzed multiple reports when determining if any were provided

to “appropriate law enforcement authorities.” See, e.g., Connally, 506 S.W.3d at

783 (analyzing numerous reports filed to various DISD departments to determine

whether they were appropriate law enforcement authorities under the Act); see also

Barth, 403 S.W.3d at 857–58 (concluding reports to general counsel, CFO, internal

auditor, and associate provost were not reports to an appropriate law enforcement

authority). Further, oral statements qualify as reports under the Act. See Connally,

506 S.W.3d at 784 (noting Act does not require a “formal” report and considering

whether statements made in conversations provided sufficient information to support

conclusion that DISD personal engaged in criminal activity); see also City of Donna

v. Ramirez, 548 S.W.3d 26, 33, 39 (Tex. App.—Corpus Christi-Edinburgh 2017, pet.

denied) (considering whether Act applied to alleged violations of law reported orally

to police chief and municipal judge).

Here, a detective with the Denton County Sheriff’s Office contacted Scott

based on Scott’s original report that Phillips forwarded to the office. Scott then

provided an oral report via telephone of Jeter’s alleged criminal conduct, including

the source of the allegations and other related information. The Denton County

Sheriff’s Office was an “appropriate law enforcement authority” because the office

was part of a local government entity investigating a violation of criminal law. See

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TEX. GOV’T CODE ANN. § 544.002(b)(2). The trial court did not err by denying the

City’s plea to the jurisdiction on this basis. We overrule the City’s third issue.

Rule 45 Motion for Sanctions

Scott has requested we sanction the City pursuant to rule of appellate

procedure 45 for bringing a frivolous appeal because the City ignores clear statutory

language, ignores language of the cases it relies upon, relies upon a ground not

properly preserved, and uses its appeal for needless delay. Rule 45 permits an award

of just damages to the prevailing party of an appeal when the court determines the

appeal is frivolous. See TEX. R. APP. P. 45.

“An appeal is frivolous when the record, viewed from the perspective of the

advocate, does not provide reasonable grounds for the advocate to believe that the

case could be reversed.” See Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 290

(Tex. App.—Dallas 2012, no pet.). Our decision to grant appellate sanctions is a

matter of discretion that we exercise with caution, careful deliberation, and only in

truly egregious circumstances. Id. Moreover, rule 45 does not require that we award

damages in every frivolous appeal. See Performance Pulsation Control, Inc. v.

Sigma Drilling Techs., LLC, No. 05-17-01423-CV, 2018 WL 6599180, at *2 (Tex.

App.—Dallas Dec. 17, 2018, no pet.) (mem. op.).

After reviewing the record and briefing filed in this Court, we conclude this

appeal does not present the type of egregious circumstances warranting the

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imposition of sanctions. Accordingly, we deny Scott’s request for damages under

rule 45.

Conclusion

The trial court’s order denying the City’s plea to the jurisdiction is affirmed.

/Craig Smith/

CRAIG SMITH

JUSTICE

210823F.P05

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S

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

THE CITY OF CELINA, TEXAS, On Appeal from the 44th Judicial

Appellant District Court, Dallas County, Texas

Trial Court Cause No. DC-20-18195.

No. 05-21-00823-CV V. Opinion delivered by Justice Smith.

Justices Carlyle and Garcia

SHEA SCOTT, Appellee participating.

In accordance with this Court’s opinion of this date, the order denying

appellant The City of Celina’s plea to the jurisdiction is AFFIRMED.

It is ORDERED that appellee SHEA SCOTT recover his costs of this

appeal from appellant THE CITY OF CELINA, TEXAS.

Judgment entered April 13, 2022.

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