DISMISS and Opinion Filed February 3, 2023 

S 

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, Justice 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 whistleblower 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 addressing the jurisdictional issue. 

Background 

William Birchett, former Senior Information Technology Solutions Manager 

for the City of Fort Worth, discovered that the City’s cybersecurity was allegedly 
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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 enforcement agencies. He was subsequently 

terminated by City Official Kevin Gunn. In 2019, Birchett filed the underlying 

case pursuant to the Texas Whistleblower Act. See TEX. GOV’T CODE ANN. 

§ 554.002. 

The City filed its first plea to the jurisdiction in 2019. The trial court denied 

the motion and the City appealed. We affirmed. See City of Fort Worth v. 

Birchett, No. 05-20-00265-CV, 2021 WL 3234349 (Tex. App.—Dallas July 29, 

2021, pet. denied). The City filed a second plea in September 2022. This appeal 

concerns the denial of that plea. 

The Law

A party may appeal an interlocutory order that grants or denies a plea to the 

jurisdiction by a governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 

51.014(a)(8). However, a party may not bring 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 interlocutory appeals whenever a trial court 

refuses to change its mind ... would invite successive appeals and undermine the 

statute’s purpose of promoting judicial economy.” Bally Total Fitness Corp. v. 
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Jackson, 53 S.W.3d 352, 358 (Tex. 2001). Where 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, the City asserted the trial court lacked 

subject matter jurisdiction because Birchett did not make good-faith reports of a 

violation of law to an appropriate law enforcement 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 supervisor learned details about 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 connection 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 termination 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 because of any protected report. In other 

words, the City challenges causation. 
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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 conclude that the City failed to meet its 

burden to rebut the presumption of causation under 554.004(a) as to Birchett’s 

termination claim. Under such circumstances, Birchett was not required to come 

forward with his own evidence that Gunn knew of Birchett’s reports when he 

terminated him when Birchett responded 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 that 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 first Plea because in filing this Plea, 

the City heeds the rulings of this 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 provided 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, did not know about Birchett’s alleged 

reports.” 

Birchett disputes the City’s characterization of its second plea. As support, 

it quotes the following language from the City’s brief in the first appeal:
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The evidence establishes that Birchett was terminated for failing to 

ensure compliance with applicable guidelines and there is no evidence 

in the record that the decision-maker believed Birchett had reported 

violations of law to a law enforcement authority, therefore, there is no 

evidence supporting a causal-connection 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 the first time around (ie. – failing to rebut 

the presumption that termination was the result of the reports of violations Birchett 

had made.). We agree. 

We conclude both pleas challenged the sufficiency of the evidence on 

causation. Moreover, we addressed the issue of causation in the first appeal. 

Accordingly, we hold the City’s second plea 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 TEX. R. APP. P. 42.3(a). 

221170F.P05 

 

/Robert D. Burns, III/

ROBERT D. BURNS, III 

CHIEF JUSTICE 
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S 

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 opinion of this date, the appeal is 

DISMISSED. 

 It is ORDERED that appellee WILLIAM BIRCHETT recover his costs of 

this appeal from appellant CITY OF FORT WORTH. 

Judgment entered February 3, 2023