Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-15-00664-CV

Stephen TORRES,

Appellant

v.

CITY OF SAN ANTONIO,

Appellee

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2012-CI-13430

Honorable Stephani A. Walsh, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Delivered and Filed: December 7, 2016

REVERSED AND REMANDED

Stephen Torres appeals the trial court’s order granting summary judgment in favor of the 

City of San Antonio. Torres sued the City under the Texas Whistleblower Act after he was passed 

over for a lieutenant position in the Arson department. He alleged the City retaliated against him 

because he filed an internal report of wrongdoing two years before applying for the position. The 

City moved for summary judgment, arguing it was entitled to judgment as a matter of law because 

Torres failed to present a genuine issue of material fact establishing the alleged adverse 

employment action would not have occurred “but for” his making a “good faith” report of the 
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illegal activity. We reverse the trial court’s judgment and remand the cause for further 

proceedings. 

BACKGROUND

Torres worked in various positions at the San Antonio Fire Department (SAFD) for more 

than 17 years. On June 18, 2009, while assigned to the Arson division, Torres observed Joe Rios, 

a former Arson Investigator, using Arson/peace officer credentials to access a secure area of the 

San Antonio Police Department (SAPD) building. Upon investigating, Torres was told that 

another former Arson investigator, Art Villarreal, also had active Arson/peace officer credentials. 

Because Rios and Villarreal were supposed to turn in their Arson credentials when they transferred 

out of the Arson department, Torres believed that Rios and Villarreal were purposely breaking the 

law. Torres believed the improper use of credentials to be a violation of department policy as well 

as a Texas Penal Code violation and immediately relayed his concerns to his supervising captain, 

Christopher Casals, via text message.

Five days later, Torres submitted a written memo to Deputy Chief Rodney Hitzfelder 

detailing what he witnessed on June 18, 2009. In the memo, Torres stated he had been told that 

Rios and Villarreal were allowed by Assistant Chief Noel Horan to maintain their peace officer 

commissions to investigate firefighter fatalities as fire department safety officers. But Torres went 

on to note that article 2.12 of the Code of Criminal Procedure, which defines “peace officers,” 

does not include fire department safety officers. The memo also referenced Section 37.12 of the 

Texas Penal Code, False Identification as Peace Officer. Believing that no action was being taken 

in response to his complaints to Casals and Hitzfelder, Torres filed a report with the Office of 

Municipal Integrity (OMI) two days after submitting the memo to Hitzfelder. 

After an investigation, OMI discovered that Rios held credentials that erroneously listed

him as being assigned to Arson and also listed a badge number that had already been assigned to 
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his replacement in Arson. In addition, the OMI investigation revealed that SAFD Chief Charles 

Hood was aware that the commissions on Villarreal and Rios were being maintained, because he 

approved them; Chief Hood, however, was unaware that public law only allows Arson 

investigators to be commissioned. Ultimately, OMI labeled Torres’s allegation as “unfounded.” 

“Although OMI could not validate the presence of fraud, the existing process by which SAFD 

personnel outside of the Arson unit are allowed to maintain their peace officer status was 

reevaluated to establish a process that would not violate existing policy or penal code as suggested 

in the complaint [filed by Torres].” Accordingly, the process changed by having Chief Hood, 

rather than San Antonio Police Chief William McManus, sign the credentials. Two months later, 

Torres requested that he be transferred out of Arson, citing health issues and a deteriorating 

relationship with Casals. 

In 2012, Torres was working as a lieutenant in a fire suppression unit and applied for a 

lateral transfer to Arson. Although the Arson lieutenant position would be a lateral transfer, it paid 

$450 more per month than he was currently earning and included other benefits, such as a take 

home vehicle, city phone, and city computer. Torres was one of two people to interview for the 

position before a panel that would recommend a candidate to Assistant Chief Earl Crayton, who 

would then pass the selection to Chief Hood for a final decision. The panel included Casals and 

two other Arson supervisors, Lieutenant Kenneth Campbell and Acting-Lieutenant Anthony 

Guerrero. The other candidate was James Bennett. 

At the time of the interview, Torres was a certified firefighter advanced, fire officer II, fire 

service instructor II, field examiner, and Arson investigator advanced. He was also an intermediate 

peace officer. Torres had been a lieutenant for 11 years; Bennett had been a lieutenant for less 

than one year and still needed to complete the police academy. 
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Guerrero and Casals recommended Bennett for the position, while Campbell recommended 

Torres due to his law enforcement experience and the fact that he was already certified. Though 

the panel was impressed with Torres’s resume and experience, Chief Hood testified that based on 

his knowledge of Torres’s time in Arson, he would not have assigned Torres the position even if 

the panel had recommended it. Casals also testified that he did not recommend Torres, in part, 

because of the way Torres handled the complaint about unauthorized credentials.

After learning that he had not been selected for the Arson lieutenant position, Torres filed 

a complaint with the City alleging that he was discriminated against by Casals due to his 

race/national origin. The City’s investigation did not find discrimination against Torres. Two 

weeks later, Torres filed a Charge of Discrimination with the Equal Employment Opportunity 

Commission (“EEOC”) alleging that he was passed over for the position due to his national origin. 

Torres also filed a complaint with the Texas Commission on Law Enforcement Officer Standards 

and Education (TCLEOSE) again alleging that Villarreal and Rios were inappropriately 

maintaining peace officer credentials, though TCLEOSE declined to investigate further.

Thereafter, Torres filed the underlying suit claiming that the City retaliated against him for 

filing the OMI complaint in violation of the Texas Whistleblower Act. The City moved for 

summary judgment and Torres filed a response. The trial court granted the City’s summary 

judgment motion. Torres timely appealed. 

STANDARD OF REVIEW

Summary judgment is proper when the summary-judgment evidence shows that there are 

no disputed issues of material fact and that the movant is entitled to judgment as a matter of law. 

TEX. R. CIV. P. 166a(c). To obtain traditional summary judgment on an opposing party’s claims, 

the movant must conclusively negate at least one essential element of each of the plaintiff’s claims.

See Lakey v. Taylor, 435 S.W.3d 309, 316 (Tex. App.—Austin 2014, no pet.) (citing Centeq 
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Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). This court reviews a grant of summary 

judgment de novo. Bank of America, N.A. v. Prize Energy Resources, L.P., No. 04-13-00201-CV, 

2014 WL 4257865, at *4 (Tex. App.—San Antonio Aug. 29, 2014, pet. denied). In reviewing 

entry of summary judgment, this court considers the evidence presented in the motion and response 

in the light most favorable to the non-moving party, “crediting evidence favorable to that party if 

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” 

Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d 

557, 566 (Tex. App.—San Antonio 2014, pet. denied) (quoting Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). 

TEXAS WHISTLEBLOWER ACT

The Texas Whistleblower Act provides that a public employee may not be retaliated against 

for reporting a violation of the law:

A state or local governmental entity may not suspend or terminate the employment 

of, or take other adverse personnel action against, a public employee who in good 

faith reports a violation of law by the employing governmental entity or another 

public employee to an appropriate law enforcement authority.

TEX. GOV’T CODE ANN. § 554.002(a) (West 2012). Thus, to establish a violation of the Texas 

Whistleblower Act, a plaintiff must allege the following elements: (1) she was a public employee; 

(2) she made a good faith report of a violation of law by her employing governmental entity or 

another public employee; (3) she made the report to an appropriate law-enforcement authority; and 

(4) she suffered retaliation as a result of making the report. Tex. Comm’n on Envt’l. Quality v. 

Resendez, 450 S.W.3d 520, 522 (Tex. 2014) (per curiam).

DISCUSSION

In its motion for summary judgment, the City challenged the elements of “good faith” 

(second element) and causation (fourth element). 
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Good Faith

“‘Good faith’ means that (1) the employee believed that the conduct reported was a 

violation of law and (2) the employee’s belief was reasonable in light of the employee’s training 

and experience.” Bexar County v. Lopez, 94 S.W.3d 711, 714 (Tex. App.—San Antonio 2002, no 

pet.) (quoting Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)). Whether a public 

employee believes that conduct he reports is a violation of law is subjective, while the second 

element, i.e., the reasonableness of that belief in light of the employee’s training and experience, 

is objective and ensures that the claimant receives the Act’s protection only if a reasonably prudent 

employee in similar circumstances would have believed that the facts as reported were a violation 

of the law. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 682–83 (Tex. 

2013).

In his Original Petition and Request for Disclosure, Torres alleged that at the time he 

reported Rios badging in with his Arson/peace officer credentials, he believed such activity was 

unlawful and his belief was reasonable. In its motion for summary judgment, the City argued 

Torres’s OMI report was not made in good faith, but rather, was made “to shield Torres from the 

consequences of unilaterally causing the credentials of Villarreal and Rios to be cancelled, and 

then lying about it when directed to provide a statement to his superiors about his activities.” In 

his affidavit, Villarreal averred that after Torres sent the text message to Casals, Casals called 

Villarreal to determine why he and Rios still had their Arson credentials. Villarreal told Casals 

they were maintaining their credentials at the direction of Chief Hood and Deputy Chief Neil 

Horan so that they could investigate on-duty deaths of SAFD personnel. Villarreal then contacted

TCLEOSE and the Texas Commission on Fire Protection, which informed him that Rios and 

Villarreal could keep their credentials with Chief Hood’s approval. A week after the phone call 

from Casals, Villarreal discovered his and Rios’s identification cards no longer worked. Villarreal 
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spoke with a civilian employee at the SAPD main building, who informed him that Torres had told 

her to shut off Rios’s and Villarreal’s access cards because they were not in Arson and should not 

have them. Villarreal reported the incident to Horan and Hitzfelder. In light of these facts, the 

City claims that at the time Torres made his report, SAFD was already investigating the matter and 

Torres knew Chief Hood had approved Villarreal and Rios maintaining their Arson credentials. 

Thus, the City argues Torres had no subjective basis on which to believe fraud was occurring. The 

City also argues Torres’s belief could not have been objectively reasonable because another 

firefighter in Torres’s position with the same training, background, and personal relationships with 

Villarreal and Rios would have contacted the two well-respected men to inquire about the facts

before reporting to Casals. 

In Torres’s response to the motion for summary judgment, he contends his OMI report was 

made in good faith: he personally witnessed the fraudulent conduct and cited the statute he believed 

to be violated. Attached to Torres’s response were numerous exhibits, including excerpts from the 

depositions of Torres, Casals, Campbell, Guerrero, and Chief Hood, as well as Torres’s affidavit. 

In his deposition, Torres testified he did not confront Villarreal and Rios directly because he would 

have had to arrest the men, it would have been outside his chain of command, and would require 

reporting in any case. Additionally, OMI policy prohibits discussing facts or suspicions with 

others. Torres further testified he never deactivated Rios’s and Villarreal’s identification cards 

and was never told or made aware he was being investigated over the supposed deactivation 

incident. Torres also testified that he went to OMI because Casals and Hitzfelder did not follow 

up after he reported. “When I wrote that report to Hitzfelder, nothing happened. . . . We never 

heard anything. We never heard that Chief Horan and Chief Hood said that it was okay for them 

to have these credentials.” Because Torres had heard nothing more than “rumors” that Villarreal 

and Rios were authorized to carry their Arson credentials, he decided to contact OMI. 
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Torres’s summary judgment response cites to evidence showing that other employees 

within the Arson department would have made a similar complaint had they witnessed the activity 

in question. Campbell testified that Torres had a good-faith belief about the OMI complaint and 

that he “handled it the way he thought best at the time.” Campbell confirmed that “when somebody 

left Arson, you turned in your credentials. . . . Everybody knew that.” Guerrero likewise testified 

that it was routine to turn in your credentials upon leaving Arson. When asked if he believed 

Torres had a good-faith belief in making the complaint, Guerrero answered, “I can’t answer to why 

his reasoning was, but he knew that up to that point, you couldn’t keep your credentials. The only 

way that you were allowed to keep your credentials in the Arson office was because you were 

assigned to Arson.” Guerrero further explained that had he witnessed Villarreal and Rios using 

their Arson credentials, he would have told his captain. He would have also asked Rios and 

Villarreal directly, and even if they had given him a valid reason for their keeping their credentials, 

he probably would have gone back to his captain and said, “I don’t agree with it. You might want 

to look into it.”

Based on Torres’s response, and viewing the evidence as a whole in the light most 

favorable to Torres, we conclude a fact issue exists on the element of “good faith.” Taking as true 

Torres’s testimony that he was unaware of what became of his initial internal complaints to Casals 

and Hitzfelder, as well as the testimony from Campbell and Guerrero indicating that they would 

have also reported the incident in question to OMI, we hold a disputed fact issue exists as to 

whether Torres’s decision to report to OMI was reasonable. Accordingly, the City did not 

conclusively negate the “good faith” element as a matter of law. 

“But For” Causation

A necessary element of a whistleblower claim is causation: that the employee suffered an 

adverse employment action because she reported a violation of the law in good faith to an 
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appropriate law-enforcement agency, although the employee’s report need not be the sole reason 

for the adverse employment action. Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633-

34 (Tex. 1995). To show causation, the employee must demonstrate that after she reported a 

violation of the law in good faith to an appropriate law-enforcement agency, the employee suffered 

discriminatory conduct by her employer that would not have occurred when it did if the employee 

had not reported the illegal conduct. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). 

In Department of Human Services v. Hinds, the Texas Supreme Court established a but-for 

causation standard in whistleblower actions: “[T]he employee’s protected conduct must be such

that, without it, the employer’s prohibited conduct would not have occurred when it did.” 904 

S.W.2d at 636. Under this standard, the City cannot negate the causation element merely by 

showing that it had other reasons for not selecting Torres for the Arson lieutenant position. To the 

contrary, the but-for standard requires conclusive proof that Torres’s OMI report did not play a 

role, however small, in the City’s decision to not award the position to him. See Ender v. City of 

Austin, No. 03-97-00329-CV, 1997 WL 658986, at *3 (Tex. App.—Austin Oct. 23, 1997, no pet.).

In its motion for summary judgment, the City put forth a host of reasons why Torres 

“cannot meet his burden to prove causation.” The City alleged: Torres provided no evidence 

showing any retaliatory action in the over two years subsequent to his making the report and prior 

to the non-selection; Bennett was legitimately selected for the position based on the merits of his 

application and interview performance;

1 Casals legitimately preferred Bennett to Torres; the nonselection was warranted based on Torres’s past misconduct; and Torres was not credible and 

changed his story of non-selection from discrimination to whistleblowing. 

 1 The City did not dispute that Torres was more qualified than Bennett in that Bennett lacked certain certifications 

necessary to perform the job.
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In his summary judgment response, Torres relied on evidence that Chief Hood and Casals 

both stated Torres’s credential complaint was the reason Torres was not selected for the Arson 

lieutenant position. The ultimate decision-maker regarding the position Torres applied for was 

SAFD Chief Charles Hood. Although Chief Hood testified that Torres was not selected for the 

position because of his “lack of leadership, his impulsiveness, his not understanding the chain of 

command, his dealing with the media without authorization, his impulsivity to go to OMI without 

going through the chain of command,” he also acknowledged that the interview panel considered 

Torres’s OMI report as a factor in its decision-making process. Hood testified that Torres’s 

complaint “should never have gone to OMI.” 

Similarly, Campbell testified that Casals brought up Torres’s OMI report during the 

selection process. Campbell told Casals he “couldn’t use this against Steve.” In response, Casals 

said, “Steve launched that investigation, he nearly cost me my job.” Campbell testified he believed 

Torres and Casals had a “tense” relationship due to the OMI fraudulent credential investigation. 

Campbell further testified that Torres was more qualified for the position than Bennett because he 

was already certified and had law enforcement experience. 

Although the City offered several reasons why Torres was not selected for the position in 

question, we are mindful of the fact that Torres was not required to prove that his reporting of the 

fraudulent credentials was the sole reason for his non-selection. Based on the foregoing, there is 

some evidence in the summary judgment record that both Chief Hood and Casals considered the 

fact that Torres reported the misuse of credentials to OMI when considering whether to select him 

for the Arson position. Thus, viewing the entire record in the light most favorable to Torres, we 

conclude the City did not negate causation as a matter of law.
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CONCLUSION

Having sustained Torres’s issues on appeal, we reverse the trial court’s order granting 

summary judgment and remand the cause to the trial court for further proceedings.

Rebeca C. Martinez, Justice