DISMISS and Opinion Filed February 3, 2023 

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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, Justi ce 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 whistleblow er 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 addr essing the jurisdictional issue. Background William Birchett, former Senior Info rmation Technology Solutions Manager for the City of Fort Worth, discovered th at the City’s cybersecurity was allegedly–2– 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 enforcem ent agencies. He was subsequently terminated by City Official Kevin Gunn. In 2019, Birchett filed the underlying case pursuant to the Texa s Whistleblower Act. See T EX
. G OV ’ T C ODE A NN
. § 554.002. The City filed its first plea to the jurisd iction in 2019. The trial court denied the motion and the City a ppealed. We affirmed. See City of Fort Worth v. Birchett, No. 05-20-00265-CV, 2021 WL 3234349 (T ex. App.—Dallas July 29, 2021, pet. denied). The City filed a se cond plea in September 2022. This appeal concerns the denial of that plea.
The Law A party may appeal an interlocutory orde r that grants or denies a plea to the jurisdiction by a governmental unit. T EX
. C IV
. P RAC

. & R EM
. C ODE A NN . § 51.014(a)(8). However, a party may not bri ng 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 interl ocutory appeals whenever a trial court refuses to change its mind ... would inv ite successive appeals and undermine the statute’s purpose of promoting judicial economy.” Bally Total Fitness Corp. v.–3– Jackson , 53 S.W.3d 352, 358 (Tex. 2001). Wh ere 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, th e City asserted the trial court lacked subject matter jurisdiction because Birche tt did not make good-faith reports of a violation of law to an appropriate law en forcement 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 s upervisor learned details a bout 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 co nnection 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 te rmination 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 be cause of any protected report. In other words, the City challenges causation.–4– 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 c onclude that the City failed to meet its burden to rebut the presumption of cau sation under 554.004(a) as to Birchett’s termination claim. Under such circumst ances, Birchett was not required to come forward with his own evidence that G unn knew of Birchett’s reports when he terminated him when Birchett re sponded 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 th at 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 fi rst Plea because in filing this Plea, the City heeds the rulings of th is 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 pr ovided 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, di d not know about Bi rchett’s alleged reports.” Birchett disputes the City’s characteriz ation of its second plea. As support, it quotes the following language from the City’s brief in the first appeal:–5– The evidence establishes that Birche tt was terminated for failing to ensure compliance with applicable guidelines and there is no evidence in the record that the decision- maker believed Birc hett had reported violations of law to a law enforcemen t authority, therefore, there is no evidence supporting a causal-c onnection 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 th e first time around (ie. – failing to rebut the presumption that termination was the resu lt of the reports of violations Birchett had made.). We agree. We conclude both pleas challenged the sufficiency of the evidence on causation. Moreover, we a ddressed the issue of causation in the first appeal. Accordingly, we hold the City’s second pl ea 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 T EX
. R. A PP
. P. 42.3(a).

221170F.P05 /Robert D. Burns, III / ROBERT D. BURNS, III CHIEF JUSTICE–6– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT CITY OF FORT WORTH, Appellant
No. 05-22-01170-CV V. WILLIAM BIRCHETT, Appellee On Appeal from the 162nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-19-06941. Opinion delivered by Chief Justice Burns. Justices Molberg and Goldstein participating. In accordance with this Court’s op inion of this date, the appeal is DISMISSED

. It is ORDERED that appellee WILLIAM BIRC HETT recover his costs of this appeal from appellant CITY OF FORT WORTH.
Judgment entered February 3, 2023