### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00424- CV

Bastrop County, App ellant

v. Rebekah Montie, Appellee

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 335 TH JUDICI AL DISTRICT NO. 28,9 61, H ONO RAB LE REVA TOW SLEE-CO RB ETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

After Rebeka

h Montie was terminated from her job as a manag er for an animal shelter in Ba strop County , she filed a suit ag ainst Ba strop County alleg ing that she was fire d in violation of t he Tex as W histleblow er Act (the “Ac t”). See Tex. Gov’t C ode §§ 554.001-.010. I n particula r, she alleg ed that she was fired afte r she repor ted that her supervisor, Di an e M ollag han, who was the direc tor for Ba stro p County Animal Service s, was g uilty of crue lty to animals. See
Tex. Pena l Code § 42.092. I n response , Ba strop County filed a plea to the jurisdiction c ontending that the district court did not have jurisdiction o ver the case beca use Montie did not comply with the require ments for a claim under the Act. Subsequently , the district court convene d a hear ing

on the plea. Once the district court considere d the parties’ various arg u m en t s , i t issued an order deny ing Ba strop County ’s pl ea. Ba strop County appea ls the di strict court’s ruling. See Tex. Ci v. Pr a c . & Re m. Co d e § § 5 1

. 0 1 4 ( a ) ( 8 ) ( a ll o w in g p a r ty to p u r s u e in te r lo c u to r y a p p e a l o f tr ia l c o u

r t’ s r u li n gdeny ing plea to jurisdiction filed by g overnme ntal unit), 101.001(3) (def ining “[g]overnme ntal unit”

as including cou n t i es ). We will reve rse the district court’s ruling but rema nd to allow Montie an opportunity

to replea d.

STANDARD OF REVIEW AND STATUTORY FR AMEWORK “Subject matter jurisdiction prese nts a question of law” that appellate courts “re view de novo.” City of Houston v. Rhule , 417 S.W .3 d 440, 442 (Tex. 2013). Acc ording ly , appellate
courts perf

orm a de novo revie w of a trial court’s ruling on a plea to the jurisdiction. W estbrook v. Penley , 231 S.W .3d 389, 394 (Tex. 2007); see Harris C n t y. v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004) (explaining that “[a] plea to the jurisdiction is a dilatory plea that seeks dismiss al of a case for lack of subject matter j u ri s diction”). When perf orming this revie w, courts look to the plaintiff’s peti t i o n t o deter

mine “whe ther the fac ts pled aff irmatively demonstrate that jurisdiction exis ts.”
State v. Holland , 221 S.W .3d 639, 642 (Tex. 2007). “I f t he pleadings a re insuff icient t o establish jurisdiction but do not aff irmatively demonstrate an incura ble defe ct, t h e plaintiff should be aff orded the opportunity to reple ad.” Id. at 643. Howeve r, if “the pleadings aff irmatively neg ate the exis tence of jurisdiction, then a plea to the jurisdiction may be g rante d without allowing the plaintiffs an opportunity to amend.” Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217,
227 (Tex. 2004). When, as here , “ an action is g rounded in statute, subject matter jurisdiction must b e s h o w n u

n d e r th e a p p li c a b le s ta tu te

. ” A r n o ld v
. P r ic e , 3 6 5 S. W. 3 d 4 5 5 , 4 5 9 ( T e x. A p p . — F o r t Wo r th 2011, no pet.). Moreove r, if a plea “cha lleng es the exis tence of jurisdictional fac ts, [appellate courts]

co n s i d er rele vant evidenc e submitt ed by the parties when nece ssary to resolve the jurisdictiona l issues raised.” Miranda , 133 S.W .3d at 227. Where a challeng ed jurisdictional fac t overla ps with

2the merits and wher e “the eviden ce cr ea t es a fac t question

. . . [,] the trial court cannot g rant the

plea to the jurisdiction, and the f act issue will be r esolved by the fa ct finder .” Id. at 227-28.
I n addit i o n , t he jurisdictional question at issue in this appea l involves statutory construction, which appellate courts also perf orm de novo. See Texas Lottery Comm’n v. First State Bank of DeQue en , 325 S.W .3d 628, 635 (Tex. 2010); City of Rock wall v. Hughes , 246 S.W .3d 621,
625 (Tex. 2008). When perf orming this analy sis, our primary o b jective is to g ive eff

ect to the leg islature’s intent. Iliff v. Iliff , 339 S.W .3d 74, 79 (Tex. 2011); State v. Shumake , 199 S.W .3d 279,
284 (Tex. 2006). I n asce rtaining that intent, we rely on the plain meaning of the words in the statute “unless a dif

fer ent meaning is supplied by leg islative definition or is a ppare nt f rom the context, or the plain meaning leads to absurd results.” DeQue en , 325 S.W .3d at 635, see Entergy Gulf States,
Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 20 0 9 ); S h u make , 199 S.W .3d at 284. I f “a statute’s words are unambig uous and y ield but one interpre tation,” we “g ive such statutes their plain meaning without resort t o rules of c onstruction or extrinsic aids.” Combs v. Roark Am useme nt & Vending,
L.P. , 422 S.W .3d 632, 635 (Tex. 2013). Moreove r, we look to the entire act and not just to “isolated
p o rt i ons,” 20801, Inc. v. Parker , 249 S.W .3d 392, 396 (Tex. 2008), and we rea d the statute as a whole, In re Ford Motor Co. , 442 S.W .3d 265, 280 (Tex. 2014). Fur thermore , we presume that “the
L eg islature sele cted langua g e in a st atute with ca re a nd that ever

y word or phr ase w as used with a
purpos e i n m i n d , ” De Quee n , 325 S.W .3d at 635, and we endea vor not to interpre t a statute “in a

manner that rende rs any part of the statute meaning les s or superf luous,” Columbia Med. Ctr. of Los Col inas, Inc. v. H

ogue , 271 S.W .3d 238, 256 (Tex. 2008).

3As mentioned above, this case was filed u n d er t h e Act, which waives “sover eig n

immunit y from suit for reta liatory discharg e under cer tain circ umstances,” Texas Comm’n on Envtl. Quality v. Resende

z , No. 13-0094, 2014 Tex. L EXI S 1165, at *2-3 (Tex. Nov. 21 , 2 0 1 4 ) (c iting
Tex. Gov’t Code § 554.035), and “prote cts public employ ees who in g ood faith repor t v i o l at i ons of law to an appropr iate law-e nforc ement authorit y , ” T ex a s Dep’ t of Human Servs. v. Okoli , 4 4 0 S. W. 3 d 6 1 1 , 6 1 2 ( T e x. 2 0 1 4 )

. St a te d d if f e r e n tl y , th e A c t “ p r o h ib it s a s ta te o r lo c a l g o v e r

n me n ta l entity from taking adver se personne l action ag ainst ‘a public employ ee who in g ood faith repor ts a violation of law by the employ ing g overnme ntal entity or another public employ ee to an appropr iate law[-]enforce ment authority .’” Id. at 613-14 (quoting Tex. Gov’t Code § 554.002(a) ). I n its curr ent

v e r s io n , th e A c t p r o v id e s th a t a r e p o r t is ma d e to a

n “ a p p r o p r ia te la w e n f o r c e me n t a

u th o r it y . . . if th e authority is part of a state or local g overnme ntal entity or the fede ral g overnme nt that the employ ee in g o o d f a it h b e li e v e s is a

u th o r iz e d to : ( 1 ) r e g

u la te u n d e r o r e n f

o r c e th e la

w a ll e g e d to b e v io la

te d in th e r e p o r t; o r ( 2 ) in v e s ti g a te o r p r o s e c u te a v io la

ti o n o f c r im in a l la

w . ” T e x. G o v ’ t Co d e § 5 5 4

. 0 0 2 ( b )

. To satisfy the above require ment, a plaintiff seeking protec tion under the Act “must prove that the report was made to an appropria t e law-e nforc ement authority , or t hat t he employ ee had a g ood-fa ith belief that it was.” Okoli , 440 S.W .3d at 614. “An employ ee’ s beli ef i s in g ood faith if: (1) the employ ee believed the g overnme ntal entity qualified, and (2) the employ ee’ s belief

was rea sonable in light of the employ ee’ s training and experience .” Id. The “sec ond element is an objective one,” and the emplo y ee o n l y rec eives protec tion under the Act “if a rea sonably prudent employ ee in simil ar circ umstances would have believed t h e g overnme ntal entity to which he
repor ted a violation of law was an appropr iate law-e nforc ement authority .” Id. ; see also Resende z ,

42014 Tex. L EXI S 1165, at *4-5 (explaining that claimant must satisfy both subjective and objective

require ments); University of Tex. Sw. Med. Ctr. v. Gentilello , 398 S.W .3d 680, 689 (Tex. 2013) (stating that Act “re stricts ‘law- enfor ceme nt authority ’ to its commonly understood meaning ”). The
g ood-fa ith inquiry “turns on more than an employ ee’ s personal belief, howeve r strong ly felt or sincere ly held.” Gentilello , 398 S.W .3d at 683.

DISCUSSIO N On appea l, Ba strop County urg es that the district court err ed by deny ing its plea to the jurisdiction. I n particula

r, Bastrop County

arg ues that the dist rict court does not have jurisdiction

over Montie’s claims beca use she did not make a repor t to an appropr iate law-e nforc ement authority

. I n her live ple ading s, Montie alleg es that she made repor ts of the alleg ed criminal behavior to two

me mb e r s o f th e B a s tr o p Co u n ty Co mm is s io n e r s ’ C o u

r t ( “ C o m m i s s i o n e r s ’ C o u

r t ” )

. M o r e o v e r , M o n ti e 1
urg es that when she made t h e report to the commissioners, she believed that the Commi ssioners’
Court was an appropr iate law-e nforc ement authority

. As support for this proposition, Montie asser ts that she believed that the Commi ssioners’ Court had authority to enfor ce a Ba s tr op County ordinanc e

I n her depos i t i on, Montie admitted that she did not talk to any one in the Sheriff’ s 1 Depa rtment or the District Attorney ’s Offic e about her conce rns. I n response to B astrop County ’s plea and ag ain on ap p eal, Montie has urge d that there was evidence that she properly invoked t he district court’s jurisdic t i o n u n d er t h e Act by virtue of a “re port” that she made to the following alterna tive “appr opriate law enfor ceme nt author i ty ”: Mollag han, who was her supervisor at the anim al shelter and was also the person that Montie acc used of animal crue lty

. This “r ep o rt , ” as Montie sees it, consisted of her confr onting Mollag han with conce rns re g arding the supervisor’ s manag ement of the animal shelter. Montie further rea sons that Mollag han was an appropr iate lawenfor ceme nt authority wit h respect to this repor t beca use the animal control depar tment that Mollag han heade d included employ ees vested with authority to enfor ce ani m al -control laws. Howeve r, in the absenc e of any pleading s actua lly prese nting this theory of Whis tleblower liability , its validit y , if any , must await furthe r deve lopment on remand. 5implementing the prohibition ag ainst animal crue lty set out in the P enal Code. See Ba strop Cnty

.

Rabies & A nimal Control Order § 8.01 ( prohibiting a bandonment, abuse , or neg lect of a nimals as specifie d in section 42.092 of Penal Code)

.

We do not be lieve that a rea sonable employ ee in circ umstances simil ar to Montie’s would have believed that the Commi ssioners’ Court was an appropr iate law-e nforc ement authority

. See Tex. Gov’t Code § 554.002(b); Okoli , 440 S.W .3d at 614. Although the Commi ssioners’ Court is imbued wi t h v ar i o u s power s and responsibilities, see Tex. L oc. Gov’t Code §§ 81.001-.034, it does not have law-e nforc ement authority as require d by the Act, see Tex. Gov’t Code § 554.002(b); cf. Resende

z , 2014 Tex. L EXI S 1165, at *7-8 (re jecting idea that member of leg islature qualifies as law-e nforc ement author ity ). Even thoug h the Commi ssioners’ Court ma y have oversig ht over the animal s helter, it does not have the authority to “re g ulate under

or enf orce ” ordinances on its own

or to investiga te or prosec ute criminal violations. See Tex. Gov’t Code § 554.002(b). Acc ording ly ,

we “find no objectively rea sonable basis for the belief that a member of the” Commi ssioners’ Court “has the power to enfor ce any law or eng ag e in a criminal investiga tion.” See Resende z , 2014 Tex. App. L EXI S 1165, at *8. Fur thermore , Montie’s y ear s of experience working with various animal shelters “ rende rs any

such belief

all the less re asonable .” See id. at *8-9.
For these rea sons, we must conclude that Montie could not rea sonably have believed that the two commissioners wer e an a ppropriate law-e nforc ement author ity

.

CONCLUSION Having deter

mined that Montie could not h ave rea sonably conclude d that the two commissioners wer e an approp ri at e law-e nforc ement authority , we conclude that Montie was not
6entit l ed to protec tion under the Act and reve rse the order of the district court deny ing Ba strop

County ’s pl ea to the j urisdiction. See Tex. Gov’t C ode § 554.002(a) ; cf. University of Houston v. Barth , 403 S.W .3d 851, 857-58 (Te x . 2013) (c oncluding that claims did not fall under protec tions of Act beca

use “none of the four people that Ba rth repor ted to reg arding alleg ed violations of t h e Penal Code

. . . could have investiga ted or prosec uted criminal law violations ag ainst third parties” ).
Howeve r, beca

use the p l ea d i n g s do not establish that Montie’s claims suffe r from an incura ble jurisdictional defe ct, we rema nd the case to the d i s t ri ct court to allow Montie an opportunity to reple ad. See M

iranda , 133 S.W .3d at 226-27.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Reverse d & Re manded Filed: Apr il 9, 2015

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