### 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

ON MOTION F OR REHEARING

NO. 03-13-00189- CV

Hun t County Com m uni ty Sup ervision and Corr ect ions Departm ent, Appellant

v. Christina Gaston, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0385 7, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

D I S S E N T I N G O P I N I O N

The dissenting opinion dated Aug ust 6, 2014, is withdrawn, an d t his opinion is substitut ed in its place.

Acc ording to the majority , a public employ ee who re p o rt s alleg ed g overnme ntal malfea sance to a state or local g overnme ntal entity with actua l authority to investiga te that conduct is not protec ted by the Whis tleblower Act unless the employ ee knows, at the time the repor t is made, the prec ise method by which the g overnme ntal entity could exercise its investiga tive authority

. See Slip op. at 35-37. I n rea ching this conclusion, the majority has applied a deg ree of strictness that is nowher e found i n t h e s t atutory lang uag e and is, in my opinion, antithetical to the Whis tleblower Act’s purpose. I n addition, the majority implies—but does not expressly hold—that a district courtdoes not constitute either a state or local g overnme ntal entity , a conclusion that would have the eff ect of depriving all district court employ ees of the Whis tleblower Act’s anti-re taliation protec tion. See id. at 18-19 n.51 & 37 n.114. Acc ording ly , I respe ctfully dissent. Christina Gaston’s employ ment was ter m i n ated by the Hunt County Communi ty S u p ervision and Correc tions Depa rtment (HCCSCD) afte r she repor ted to a state district cou rt judge —the Hon. Stephen Tittle—that she believed HCCSC D employ ees had eng ag ed in a ctivities that violated state law. Gaston t es t i fi ed t h at she repor ted the activity to J udg e Tittle beca use she believed h e could “put a stop to it and

. . . investiga te it and see if it was leg al or not.” Gaston’s belief that J udg e Tittle could investiga te the alleg ations was subjectively and objectively rea sonable beca use, under the court-of

-inquiry proce ss g overne d by Chapter 52 of the Texas Code of Criminal Procedur e, district court judge s possess investiga tive authority dis t inct from both their traditional adjudicator

y and reme dial power s and their internal authority to reg ulate and enfor ce compliance as supervisors. See Tex. Code Crim. P roc. a rts. 52.01-.09 (gove rning court-of -inquiry proce eding s); Un i ve r s i t y of Tex. Sw. Med. Ctr. v. Gentilello , 398 S.W .3d 680, 682-88 (Tex. 2013) (as used in Wh is tle blower Act, “appr opriate law enfor ceme nt authority ” connotes external authority to reg ulate , enfor ce, investiga te, or prosec ute violations of law ag ainst third parties outside of employing entity itself rathe r than purely internal authority ). That an employ er may lack investiga tive authority in one capa city does not preve nt i t fr om having such authority in a differ ent capa city

. See Gentilello , 398 S.W .3d at 686 (re cog nizi ng that employ er may not be “appr opriate law enfor ceme nt authority ” in supervisor y ca p acity but might independe ntly satisfy that definition due to authority employ er possesses in another capa city ); Leach v. Texas Tech Univ. , 335 S.W .3d 386, 395-96, 397 n.5 (Tex.

2App.—Amar illo 2011, pet. denied) (holding that petition instit uting civil lawsuit did not constitute

“re port” under Whis tleblower Act beca use judiciary ’s role vis-à-vis l aw suit is adjudicator y and

reme dial, not investiga tive or reg ulatory , but acknow ledg ing that some judge s may possess authority bey ond mere adjudication that might independe ntly satisfy statutory definition of “appr opriate law enfor ceme nt authority ”).

T h e ma jo r it y n o n e theless conclude s that Gaston’s claim under the Whis tleblower Act fails as a matter of law beca use Gaston lacke d a g ood-fa ith b elief that a state district court judge could “investig ate or prosec ute a violation of criminal law.” See Slip op. at 35-37. Moreove r, even thoug h n ot nece ssary to the majority ’s dispositi on, the opinion g oes further by sug g esting that district
courts do not cons t i t ute either a state or a local g overnme ntal entity within the meaning of the Whis tleblower Act. See Slip op. at 18-19 n.5 1 & 3 7 n.114. Such a holding would cate g orica lly

ex cl u d e district court employ ees from protec tion under the Whis tleblower Act. I n my view, th e majority ’s analy sis of these issues relies on an unrea sonable construction of the statute and fine-spun distinctions that are incompatible with the Act’s leg islative purpose. See, e.g. , University of Houston

v. Barth , 178 S.W .3d 157, 162 (Te x . Ap p .—Houston [1st Dist.] 2005, no pet.) (“B eca use the [W histleblower Act] is reme dial in natu re, we construe its provisions liberally to eff ectua te its leg islative purpose—to enhanc e openness in g overnme nt and compel the g overnme nt’s compliance with the law by

protec ting those w ho inform authorities of w rong doing.” ).
I would hold that (1) there is evidenc e that Gaston honestly believed that J udg e Tittle could investiga

te her alleg ations of criminal misconduct; (2) it is objectively rea sonable to be lieve that district c ourt judge s are authorized to investiga te alleg ations of criminal misconduct g iven the

3investiga tive authority confe rre d on them under Chapter 52 of the Code of Criminal Procedur e; and

(3) dist rict courts are state or local gover nmental entit ies (and as a practica l matter, it is irreleva nt which one) . I there fore cannot join in the majority ’s opinion and judg ment.

DISCUSSIO N The Whis tleblower Act forbids state and local g overnme ntal en t i t i es from taking adver se employ

ment 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 enfor ceme nt

au t h o ri t y . ” Tex. Gov’t Code § 554.002(a)

. A “public employ ee” is define d by the Act as “a n employ ee or appointed office r . . . who is paid to perf orm service s for a state or local g overnme ntal entity .” Id. § 554.001(4 ). “[ A] repor t is made to an appropr iate law enfor ceme nt authority if the authority is a part of a state or local g overnme ntal entity

. . . that the employ ee in g ood faith believes is authorized to . . . investiga te or prose cute a violation of criminal law.” Id. § 554.002(b). As used in the Whis tleblower Act, the term “appr op ri ate law enfor ceme nt entity ” require s more than being empower ed t o d i scipline internally or to ref er suspected violations elsewhe re. See Gentilello , 398 S.W .3d at 682. I nstead, consistent with the Act’s “undenia ble focus

on law enfor ceme nt,” id. , the Texas Supreme C o u rt has identified various attributes that are char acte ristic of entities possessing law-e nforc ement authority within the meaning of th e Whis tleblower A ct:

C “fr ee- standing reg ulatory , enfor ceme nt, or crime- fig hting a uthority ”;

C authority

to “make the law or pur sue those who br eak the law”;

4C “author ity to enfor ce, investiga te, or prosec ute violations of law ag ainst third parties outside of the entity itself, or . . . authority to promulg ate reg ulations g overning the conduc t of such third par ties”;

C “powe r to enfor ce the law alleg edly violat ed or to investiga te or prosec ute criminal violations ag ainst third parties g ener ally ”;

C “author ities that issue leg al direc tives, not authorities that follow them”; and

C “a law-e nforc ement officia l formally investiga ting or prosec uting [l eg al] noncompliance on behalf of the public, or a reg ulatory authority char g ed with promulg ating or enfor cing reg ulations applicable to third parties g ener ally .”

Id. at 682, 686-87; see also Slip op. at 26. I t has also been said that the phrase “appr opriate law enfor ceme nt authority ” in the Whis tleblower Act ref ers to an entity “c h ar ged with the ability to enfor ce or reg ulate the laws purportedly brea ched or [t o] investiga te the brea ch of those laws,” and that such a descr iption evokes “visions of p o l i ce , ad minist rative ag encie s, district attorney s, the attorney gen era l, and li ke bodies commonly associate d with investiga ting and enfor cing the l aw.” Leach , 335 S.W .3d at 396.

The foreg oing attributes are distinct from thos e embodied in t h e t ra d i t ional role of the judiciary , which is to use the power of adjudication to apply the law and, if appropr iate, provide

a reme dy

. Those attributes are als o d i s t i n ct from a judge ’s role as a supervisor. Thus, I have no quarr el with the majo rity ’s conclusion that trial courts do not meet the statutory definition of “an
appropr iate law enfor ceme nt a uthority ” when only

their adjudicative or supervisory capa cities are implicated. See Slip op. at 22-24 & 31; see also Gentilello , 398 S.W .3d at 684 (holding that public employ ee did not have objectively re as o n able belief that supervisor was “appr opriate law enfor ceme nt a

uthority ” beca

use “[g]iven his training and expertise, he should ha ve known that his

5supervisor’ s purely internal authority was not law enfor ceme nt bu t l aw compliance ” (empha sis

added) ); Leach , 335 S.W .3d at 395-96 (filing civil lawsuit is not “re port” under Whis tleblower Act beca use lawsuits invoke court’s adjudicator y power s, which do not include power to investiga te or reg ulate except in g ener al sense thr oug h adjudication).

Howeve r, state district court judge s are not limit ed to acting in those capa cities. By virtue of the c ourt-of- inquiry power s confe rre d by Chapter 52 of t he C ode of Crimi nal Proce dure, district court judge s are unambig uously permitted t o step out of their adjudicator y roles and are exp ressly authorized to investiga te—and to a limit ed deg ree prosec ute—alleg ed violations of criminal law. See Tex. Code Crim. P roc. a rts. 52.01-.09. 1 Chapter 52 e mpowers district cour t judge s to:
(1) initiate investigat i v e proce eding s into unlawful conduct by reque sting that the presiding judge of th e ad m i n i s trative district appoint a district court judge to commence a court of inquiry and by executing a sworn aff idavit establishing probable cause to believe that a specific violation of the law ha s occur red; (2) preside over a court of inquiry and conduct a fac t-find i n g i n v es tiga tion into all ega tions of criminal misconduct, including summoning witnesses and hear ing testimony ; and

The terms “i n v es tiga te” and “prose cute” are not define d in the Whis tleblower Act. I n 1 common parla

nce, “investig ate” means “[t] o inquire into (a matter) sy stematically

. . . [t ]o make an officia l inquiry .” Black’

s Law Dictionary 953 (10th ed. 2009); see American Heritage Dictionary of the English Language 689 (1973) (def ining “investig ate” and “investig ation” to include making an inquiry). “Prosec ute” means “[t] o commence and car ry out (a leg al action)

. . . [t ]o instit ute and pursue a criminal action ag ainst (a person) .

. . [t ]o eng ag e in; car ry on.” Black’

s Law Dictionary 141 6 (1 0th ed. 2009); see American Heritage Dictionary of the English Language 1050 (1973) (def ining ter m to include “[t] o initiate leg al or c riminal court ac tion ag ainst .

. . [t ]o see k to obtain or enf orce by leg al ac tion”). 6(3) issue an arr es t warrant to fac ilitate further prosec ution if there is sufficie nt

evidenc e that an of

fense has bee n committed.

See id. arts. 52.01, .08. These activities are substantially simil ar to the basic investigative powers char acte ristic of l aw -e nforc ement authorities in non-judicial branc hes of the g overnme nt, such as police office rs and district attorney s. They are also virtually indisti ng uishable from the attributes the
Texas Supreme Court h as re co g nized as being char acte ristic of an “appr opriate law enfor ceme nt authority .” See Gentilello , 398 S.W .3d at 682, 686-87. Thus, under Chapter 52, district court judge s possess authority bey ond adjudication and internal disciplinary authority : acting in the capa city of “mag istrate,” they have the power t o investiga te criminal brea ches of the law by the citizenry at larg e. C f

. In re Thompson , 330 S.W .3d 411, 415 (Tex. App.—Austin 2010, orig

. proce eding ) (hold i n g t h at district judge had distinct power s when acting in capa city as “district judge ” as compar ed to acting in capa city as “mag istrate”)

. For purposes of the Whis tleblower Act, the power
to “investig ate” while acting in the ca pacity as a mag istrate makes district court judges functional equivalents of ty

pical law-e nforc ement entities in terms of their fundame ntal investiga tive authority as to alleg ations of cr iminal conduct. 2

There is nothing novel about the conce pt that g overnme ntal actor s who wea r more than one 2 hat might independe ntly satisfy the statutory definition of “appr opriate law enfor ceme nt authority ” i n o n e ca p acity but not in another

. I n fac t, such a scena rio was expressly contemplated by the supreme c ourt in Gentilello : We d o n o t hold that a Whis tleblower Act repor t can neve r be made internally

. A police department employ ee co u l d re tain the protections of t he W histleblower Act if she repor

ted that her partne r is dealing narc otics to her supervisor in the narc otics or internal aff

airs division. I n such a situation, the employ ee works for an entity with authority to investiga te violations of drug laws committed by the citizenry

at larg e.

7T h e majority discerns from supreme court prec edent the “cor e notion” that an

“appr opriate law enfor ceme nt authority ” is “an entity that is empower ed to respond on behalf of the public to repor

ted alleg ed ‘violations of law’ by takin g ac t i o n against whateve r third parties may have committed the alleg ed wrong doing.” S ee S l i p o p . at 26. That, of course , is prec isely what Chapter 52 authorizes district court judges to do. The court-of- inquiry proce ss confe rs on district
court judge s external, fre e-standing authority to investiga te alleg ations of criminal misconduct and, if such misconduct is shown, to pursue third- party criminal ac tors by

issuing an arr est war

rant. I n

acc ordanc e with the W histleblower Act’s plain lang uag e, a district court judge could therefo re be “an appropr iate law enfor ceme nt authority ” to whom a “publ i c em p l o y ee” can “re port” alleg ed violations of criminal law.

The majority rea ches a contra ry conclusion by importing extra-textual require ments, considering discrete portions of the court-of -inquiry proce ss isolated from the statute as a whole, and char acte rizing a court-of

-inquiry proce eding as an adjudicator y proce ss beca

use it involves a hear ing
at which witnesses are questioned rathe r than the ty pical law-e nforc ement imag e of a police office r conducting a witness interview. What derive s fr om this analy sis is the m ajority ’s conclusion that Gaston fa iled to meet her burden to plea d and produc e evide nce tha t she had a “g ood-fa ith” belief

University of Tex. Sw. Me d. Ctr. v. Gentilello , 398 S.W .3d 680, 686 (Tex. 2013) ; accord Leac h v. Texas Tech Univ. , 335 S.W .3d 386, 397 n.5 (Tex. App.—Amar illo 2011, pet. denied) (making a simil ar observa tion, althoug h otherwise concluding that civil lawsuit did not constitute “re port” under Act beca

use, wit hin context of l awsuit, d i s t ri ct court judge had authority only to adjudicate civil law violations alleg ed in lawsuit, not reg ulate or investiga te); see also Sli p o p . at 23 (ac knowledg i n g t h at “[ a] repor t rec ipient

. . . could be ‘par t’ of an entity possessing authority extending bey ond mere ly ensuring internal compliance and independe ntly satisfy ing the definition of ‘a ppropriate law enf

orce ment authority ’”)

. 8that J udg e Tittle was an “appr opriate law enfor ceme nt authority .” Howeve r, g iven that district court

judge s actua lly h av e the statutory authority to investiga te alleg ations of criminal malfea sance by
g overnme ntal actor s (and any one else for that matter), the majority ’s concl u s i on that there is no evidenc e that Gaston honestly and rea sonably believed that J udge T i t t l e possessed the requisite investiga tive power s is without foundation. See Texas Dep’ t of Transp. v. Needham , 82 S.W .3d 314, 320 (Tex. 2002) (W histleblower Act’s g ood-fa ith re q u i re m ent comes into play when employ ee is
wrong about whether entity was “appr opriat e l aw enfor ceme nt authority ”); cf. Lastor v. City of
Hearne , 810 S.W .2d 742, 744 (Tex. App.—Waco 1991, writ denied) (empha siz ing that “g ood faith” is issue only

if employ ee is wr ong about illeg ality of re ported c onduct). As used in the Whis tleblower Act, the “g ood faith” require ments in subsections (a) and (b) of section 554.002 have both subjective and objective component s . See Needham , 82 S.W .3d at 320-21. As use d in section 554.002(b), “ g ood faith” me ans:
(1 ) the employ ee believed the g overnme ntal entity was authorized to (a) regul at e under or enfor ce the law al leg ed to be violated in the repor t, or (b) investiga te or prosec ute a violation of c riminal law; and (2) the employ ee’ s belief was rea sonable in light of the employ ee’ s training and experience

.
Id. at 321. The first element of the g ood-fa ith standard ref ers to “honesty in fac t,” while the second element ensure s that the repor ting employ ee’ s belief, even if incorre ct, was objectively rea sonable. Id. at 320. The majority conclude s that G a s to n ’s whistleblower claim fails on both counts. First, the majority opines that “Ga ston could not have met her burden to show a subject i v e go o d faith
9belief tha t J udg e Tittle was e mpowere d to ‘investigate . . . a violation of law ’” be cause there is no

alleg ation or evidenc e that she knew the prec ise method by which h e co u l d exercise his external law-e nforc ement authority —namely , the court-of

-inquiry proce ss. See Slip op. at 35 (“G aston
prese nted no alleg ation or evidenc e that she ‘re ported’ the asser ted ‘violations of law’ with the intent

or belief that J udg e Tittle would ‘investig ate’ them throug h the court-of -inquiry proce ss.”). Second, the majority conclude s that even if Gaston possessed a subjective belief of these fac ts, it would not be objectively rea sonable to believe that district court judge s possess author i t y t o investiga te criminal-law violations beca use a district judge who initiates a court of inquiry cannot also preside over it, see Tex. Code Crim. Proc. art. 52.01(b) (2), a nd beca use the majority

contends that district

c o u r t judge s essentially function as adjudicator s in the court-of -inquiry proce ss, see Slip op. at 35-36

. Wit h reg ard to evidenc e of subjective “g ood faith,” there is no statutory require ment that an employ ee know the specific method by which a law-e nforc ement entity can investiga te o r prosec ute a violation of criminal law. Nor is t h er e an y such require ment discerna ble from the interp re t i v e case law. To the contra ry , in construing the g ood-fa ith require ment in section
5 54.002(a) , Texas appellate courts have consistently held that “[t] here is no require ment that an employ ee identify a specific law when making such repor t.” Texas Dep’ t o

f C r i mi nal Justice

v. McEly ea , 239 S.W .3d 842, 850 (Tex. App.—Austin 2007, pet. denied) ; see also Texas Y outh Comm’n v. Bollinger , No. 07-11-00152- CV, 2013 WL 2390101, at *2 (Tex. App.—Amar illo May 28, 2013, pet. denied) (mem. op.); W ilson v. Dall a s In dep. Sch. Dist. , 376 S.W .3d 319, 323 (Tex. App.—Dallas 2012, no pet.); Llanes v. Corpus Christ i Indep. Sch. Dist. , 64 S.W .3d 638, 642 (Tex. App.—Corpus Christi 2001, pet. denied).

10Altho ug h the case s cited above involve the “g ood faith” repor ting require ment in subsection (a) of section 554.002, the same g ood-fa ith test applies to the “g ood faith” require ment in subsection (b): “[T] he same test applies to deter mine if a public employ ee in g ood faith believed the g overnme ntal entity to which he repor ted a violation of law was an appropr iate law enfor ceme nt authority

. Ap p l y ing this test upholds the statutory construction principle that, when fea sible, we should consistently interpre t terms used throug hout a statute.” Needham , 82 S.W .3d at 320-21. I f “g ood faith” does not require the employ ee t o know the specific law violated when repor ting suspected illega l activity , it cannot logic ally require knowing the specific source of the law-e nforc ement authority ’s investiga tive p o we rs. I t is there fore immaterial whether there is evidenc e that Gaston was subjectively awa re that J udg e Tittle derive d his inv es t i gat i ve authority from the court-of

-inquiry proce ss in Chapter 52. The rele vant inquiry is whether there is an alleg ation, and at least some evidenc e, that Gaston honestly believed that a state district court judge has the authority to investiga te alleg ations of criminal misconduct. See id. at 320 (eve n if employ ee made repor

t to entity that was not actua lly “an appropr iate law enfor ceme nt authority ” for particula r violation alleg ed, employ ee could still obtain protec tion under whistleblower statute if he had “g ood fa i t h ” belief) ; cf. Lastor , 810 S.W .2d at 744 (empha siz ing that “g ood faith” is an issue o n l y i f employ ee is mistaken)

. For the limited purpose of our jur isdictional inquiry , the subjective “g ood faith” co m p o n ent is satisfied not only by the fac t that Chapter 52 g ives district court judge s investiga tive authority

—thus making them an appropri ate law-e nforc ement authority under the Whis tleblower Act—but also by Gaston’s pleading s a n d te s ti mony that she believed that J udg e Tittle could “put a stop to [t he activity she repor ted] a nd

. . . investiga te it and see if it was leg al or not.”

11The majority further conclude s that Gaston’s belief that J udg e Tittle had some

investiga tive authority

—even if honestly held—was not objectively rea sonable beca use Chapter 52 does not, in their view, confe r enough investiga tive aut h o ri t y to meet the statutory definition of “appropriate law enfor ceme nt authority .” See Slip op. at 35-36 (conc luding that any au t h o ri t y confe rre d und er Chapter 52 is “not the sort” of “‘f ree -standing

. . . crime- fig hting authority ’” or power “‘ t o investiga te or prosec ute criminal violations ag ainst third parties g ener ally ’” that is char acte ris t i c of “appr opriate law enfor ceme nt authority ”). I n support of this conclusion, the majority opines that (1) the first judg e in the court-of-inquiry proce ss is only

empower ed to “r efe r suspected illega lity to external entities” and thus does not have any authority to “investig ate” within the meaning of the Whis tleblower Act and (2) the co u rt -of- inquiry proce ss is essentially indisti ng uishable fr om an adjudica tive proce eding

. See Slip op. 35-36.

Although a

ny district court judg e ca

n initiate or preside over a court of inquiry , the

same judge cannot do both. Tex. Code Crim. Proc. art. 52.01(a) , (b)( 2). There fore , althoug h J udg e Tittle could be appointed to conduct a court of inquiry that he did not initiate, the majority conclude s that it was not o b

j ec tively rea sonable for Gaston to believe that he possessed authority to “investig ate” her alleg ations beca use he could not have presided over a court of inquiry t hat he himself initiated. Acc ording to the majority , this place s J udg e Tittle in the role of mere ly ref err ing alleg ations of criminal conduct to an “external entity ” (i.e., another district court judge who would conduct the court of inquiry). The majority ’s analy sis on this point is flawe d for at least two rea sons.

First, in deter

mining whether a repor t was made t o “a n appropr iate law enfor ceme nt authority , ” we m u s t l o ok at either the entity to which the repor t was made or to the

12specif

i c i n d i v i dual to whom it was made. See, e.g. , Texas Dep’ t of Human Servs. v. Okoli , 57 Tex. Sup. Ct. J

. 1214, 2 0 1 4 W L 4 1 1 6 8 0 7 , at *5 (Tex. Aug

. 22, 2014) (“To satisfy the Act’s require ments, a repor

t must be made to (1) an individual person who possesses the law-e nforc ement
power specifie d under the Act, or (2) someone who, like a police-intake cler k, works for a g overnme ntal arm specific ally char g ed with exercising such power s.”); Robertson Cnty. v. W ymola , 17 S.W .3d 334, 340 & n.6 (Tex. App.—Austin 2000, pet. denied)

. The rele vant inquiry , there fore , is whether either J udg e Tittle persona lly or sta te district court judge s are “author ized to

. . . investiga te or prosec ute v i o l at i o n s o f criminal law.” Tex. Gov’t Code § 554.002(b)( 2). Be cause Chapter 52 c lear ly

confe rs such authority , district court judg es possess the a uthority to investiga te criminal alleg ations even if a particula r judge would be prec luded from presid i n g o v er a court of inquiry as to a pa rticular a lleg ation.
Moreove r, even if the focus wer e on the individual, Chapter 52 g ives J udg e Tittle the authority to initiat e a criminal investiga tion by reque sting a court of inquiry even if he could not
persona lly preside over the ensuing proce eding befor e a district c ourt judge

. The power to initiate

an investiga tion is an integ ral part of the investiga tive proce ss. A court of inquiry can neither beg in

nor proce ed unless a district court judge reque sts it and files a probable -ca use aff idavit. Tex. Code Crim. Proc. art. 52.01(a) , (b) (district court judge m ay only reque st commence ment of court of inquiry afte r “ente r[ing] into the minutes of his court a swor n aff idavit sta ting the substantial f acts establishing probable cause that a specific offe nse has been committed ag ainst the laws o f this state”)

. Even without liberally construing the Whis tleblower Act to eff ectua te its purpose, the power
to initiate a court of inquiry is part and parc el of the court-of -inquiry proce ss and is, in my opinion,

13sufficie nt to meet the statutory require ment that “an appropr iate law enfor ceme nt authority ” be

“author ized to

. . . investiga te

. . . a violatio n o f cr i m i n al law.” To the extent the majority holds otherwise, it does so by ere cting a highly formalistic barr ier to a statutory re m ed y t h at we

are admonished to construe broadly

. Acc ording ly , I would hold th at J u d ge T i t tle is “an individual person who possesses the law-e nforc ement power s specifie d under the Act.” See Okoli , 2014 WL 4116807, at *5.

I also disag ree with the court’s sug g estion that the court-of-inquiry proce ss is materia lly indisti nct from a criminal trial. The role district court judge s play in the court-of -inquiry
proce ss bear s no rese mblance to the role they play in adjudicating a criminal complaint. Unlike the court-of -inquiry proce ss, criminal trials do not orig inate from the judge s who p re side over them. J udg es also do not summon the witnesses who appea r in those case s or decide the inquiries to make of testify ing witnesses. Unlike a criminal trial, no rig hts are ad j u d i ca t ed in a court of inquiry , no

reme dies are cra fted, and no adjudicative finding s are made. The only “finding ” that can be said to result from the court-of

-inquiry proce ss is that there is or is not s u ff icient evidenc e for an arr est

war rant to be issued. See Tex. Code Crim. Proc

. art. 52.08. Whil e it is true that a cour t of inquiry does not authorize a district court judge to pursue a criminal violation throug h conviction or acquittal, that is not wha t the Whis tleblower A ct re quires. I f it were , there would be pre cious few wh o wo u l d meet the statutory definition of “appr opriate law enfor ceme nt authority .” Suc h a conclusion is not a rea sonable construction of the statute and is fundame ntally at odds with the broad

reme dial measure the leg islature ena cted.

14On a separa te i ssue, t he majority intimates a belief that district courts ar e excluded

from the statutory

definitions of “state g overnme ntal entity ” and “loc al g overnme ntal entity .” See Slip op. at 18-19 n.51, 37 n.114. Thoug h the majority ’s discussion of thi s issue is rele g ated to two footnotes, it cannot be le ft unaddre ssed. The pr actica l effe ct of construing the Whist leblower Act as the majority implies would extend far bey ond mere ly barr ing a district court judge from ever being an “appr opriate law enfor cem en t authority .” I t would mean that district courts are wholly exempted from the Whistl eblower Act’s pr ohibitions and their e mploy ees de nied its protections. The brea dth of the terms “state g overnme ntal entity ” and “loca l g overnme ntal entity ” is critica l in deter

mining whom the Act g overns, whom the Act protec ts, and to wh o m protec ted
repor ts must be made to invoke the Act’s protec tions an d prohibitions. The majority hints that district c ourts have been cate g orica lly excluded from these statutory terms and there fore could not

ever be “an appropr iate law enfor ceme nt authority ” to whom a repor t could may be made under the Act. See id

. Be cause the Whis tleblower Act sp ec i fi ca l l y protec ts “public employ ee[s]”—a term define d as those employ ed by “a state or local g overnme ntal entity ”—such a holding would swee p

awa y the Act’ s protection for

all employ ees of district courts. I t is unfathomable that this was the leg islature’s intent in enac ting a statute whose purpose is “to enhanc e openness in g overnme nt and compel the g o v er n m ent’s compliance with the law by protec ting those who inform authorities of
wrong doing.” See Barth , 178 S.W .3d at 162; see also City of W aco v. Lopez , 259 S.W .3d 147, 154 (Tex. 2008) (“The Whis tleblower Act is a broad reme dial measure intended to encour ag e disclosure of g overnme ntal malfea sance and corr uption.”). Be cause the broad statutory lang uag e encompa sses

ever y other nook and cra

nny of state and local g overnme nt, see Tex. Gov’t Code § 554.001(2), (5),

15there is no rea son why a statute of such obvious brea dth would exclude from its protec tion—for no

appar ent purpose or rea son—an entire cate g ory of g overnme ntal entities and employ ees. Ex cluding 3 district court employ ees from the Whis tleblower Act’s protec tion would simply be untenable g iven both the statute’s evide nt purpose and its text as a whole.

When a term is specia lly define d in a statute, we are bound by the statutory definition. Id. § 311.011(b); TGS-NOPEC Geophy sical Co. v. C o mbs , 340 S.W .3d 432, 439 (Tex. 2011). Undef ined terms used in statutory definitions are aff orded their ordinary meaning unless a differ ent

or more prec ise definition is appar ent from the context of the statute. Tex. Gov’t Code § 311.011(a) ; TGS-NOPEC , 340 S.W .3d at 439. I n construing and apply ing statutory terms, our mandate is to

asce rtain and g ive ef

fec t to the leg islature’s intent. The Whis tleblower Act expansively define s the term “state g ov er nmental entity ”
to mean:
(A) a board, commis s i o n , depar tment, office , or other ag ency in the executive branc h of state g overnme nt, cre ated under the constitution or a statute of the state, including an instit ution of highe r education , as define d by Section 61.003, Educa tion Code; (B ) the leg islature or a leg islative ag ency ; or

The majority posits that wholesale exclusion of district courts from the Whis tleblower Act 3 can be explained to the extent such exclusion is nece ssary to prec lude district c ourts from meeting the definition of “appr opriate law enfor ceme nt authority .” See Slip op. at 37 n.114 (“We would add that if the L eg islature had actua lly contemplated that ‘investig ate or prosec ute a violation of criminal law’ could be construed to encompa ss district courts by virtue of chapte r 52, this might well explain a decision to exclude such courts from the Act altog ether .”). But any need to limit the scope of the “appr opriate law enfor ceme nt authorit y ” d efinit ion does not explain a categorical exemption of district courts from the A ct’s anti-r etaliation provisions. 16(C) the T ex as S upreme Court, the Tex as C ourt of C riminal Appea ls, a court of appea ls, a state judicial ag ency , or the State B ar of Texas.

Tex. Gov’t C ode § 554.001(5). Thus, in broad terms, the Ac t define s “state gove rnmental entity ”
to include the executive branc h, the leg islative branc h, and the judicial branc h of state g overnme nt. Although the state’s appellate courts are specific ally listed in the judicial-bra nch component of the statute, district courts and other trial courts are not. But if district courts are not included in the term “state judicial ag ency ,” the anomalous result would be that a rela tively minor judicial ag ency —such

as the Offic e of Court Administration, the Texas Supreme Court Rules Commi ttee, the Texas Court Reco rd s P re serva tion Task Force , or t he J udicial C ommitt ee on I nformation Technolog y —would constitute a “state judicial ag ency ” that is g overne d by the Act, while a district court would not. Cf.
Tex. R. J ud. Admin. 12, reprinted in Tex. Gov’t Code, tit. 2, subtit. F app. (“Judicial Ag ency means

an office , board, commission, or other simil ar entity that is in the J udicial Depa rtment and that serve s

an administrative fun ct i o n for a court. A task forc e or committee cre ated by a court or judge is a ‘judicial ag ency .’”)

. L ikewise, other adjudicative bodies, such as the Boa rd of Disciplinary Appea ls and the State Of

fice of Administrative He aring s, would arg uably be gover ned by the Act and thus could be “an appropr iate law enfor ceme nt authority ” to rec eive repor ts of g overnme ntal malfea sance but a dis trict court would not. Such a construction of t he Act would result in district courts being
cate g orica lly

exempted from the Ac t’s anti-re taliation prohibitions. Thi s defies log ic. Whil e we discern leg isl at ive intent primarily from the lang uag e of a statute, the
statuto ry purpose “is the context in which the words speak.” Jaster v. Comet II Constr. Inc. , 57 Tex. S up. Ct. J . 1005, 2014 WL 2994503, at * 20 (Te x . J uly 3, 2014) (He cht, C.J ., dissenting)

.

17“When we can find that purpose without inventing it, and pursue it without adding or detra cting from

it, it should inform our interpret at i o n.” Id

. Thus, it has l ong been a rule of st atutory construction
t h at “a statute is to be construed with ref ere nce to its manifest object, and if the lang uag e i s susceptible of two constructions, one of wh ich will car ry out and the other defe at such manifest object, [t he statute] should rec eive the former construction.” Citi zens Bank v. First State Bank , 580 S.W .2d 344, 348 (Tex. 1979).

Her e, the brea dth of the definitions in t h e Whis tleblower Act evince s a leg islative intent to apply the statute to a ll state and local g overnme ntal entities—so muc h so that it would be

rea sonable to expect the leg islature to specifically exc lude district courts if it had so intended, rathe r than finding such an exclusion by implica t i o n . Gi v i n g full eff ect to the lang uag e the leg islature chose, it would be mor e co n s i stent with the i nclusiveness of the s tatute t o rec og nize and embrace

an overla p in the terms used, rathe r than resor ting to extra-textual construction aids to unnece ssarily

ex cl u d e a broad cate g ory of g overnme ntal actor s from the statute’s broad scope. Although “we shoul d av o i d , when possible, trea ting statutory lang uag e as surplusag e, . . . there are times when redunda ncies a re pr ecise ly

what the L eg islature intended.” In re Estate of Nash , 220 S.W .3d 914, 917-18 (Tex. 2007) (interna l citations omitted). I ndeed, statutory redunda ncies may mean that “the
L eg islature repe ated itself o ut of an abundanc e of caution, for emphasis, or both.” In re City of George town , 53 S.W .3d 328, 336 (Tex. 2001). I believe that is the case here

. I ndeed, it is the only construction that make s sense in t he contex t of t he st atute as a whole. I f st ate dist rict courts must

come within the term “state judicial ag enc y ” i n order for court employ ees to fall within the

18protec tion of the Whis tleblower Act, then common sense and rea son dictate that district c ourts are

so included, bec ause a

ny other c onstruction defe ats the statute’s pur pose. Al t erna tively , the definition of “loca l g overnme ntal entity ” could rea sonably b e construed as including state district courts based on the role such courts play in th e state’s
g overnme ntal s t ructure and their county - or district-level jurisdiction. As broadly define d in the Whis tleblower Act, the term “loca l g overnme ntal entity ” means “a political subdivision of this state ” and expressly “includ[es]” in that term a “county , ” “m u n icipality ,” “public school district,” and “spec ial-purpose district or authority .” Tex. Gov’t Code § 554.001(2). “‘I ncludes’ and ‘including ’

are terms of enlar g ement and not of limit ation or exclusive enumer ation, and use of the terms does
not cre ate a presumption that components not expressed ar e ex cl u d ed.” Id. § 311.005. District
courts and other trial courts are not specific ally mentioned and must there fore b e included in the definition of “loca l g overnme ntal entity ” if they wo uld rea sonably fall within the ambit of the undefine d phrase “a political subdivision of this state.” I n g ener al, the term “political subdivision” ref ers t o “[ a] d i v ision of a state that exis ts primarily to discharg e some function of local
g overnme nt.” Black’

s Law Dictionary 1346 (10th ed. 2014); see American Heritage Dictionary of the Engl ish Language 1015 (1973) (defining “political” to include “[ o]f, perta ining t o , o r d ea l i ng with the

. . . structure , or aff airs of g overnme nt .

. . of the state

. . . [having] a definite or org anized policy or structure of g overnme nt”), 1281 (“subdivision” means the act of “divid[i ng ] a part or parts of into smaller par

ts”). Consistent with the ordinary meaning of t hat t erm, district cour ts ex erc ise deleg ated judicial authority over g eog raphic subdivisions of the state and, as a prac tical matter, are

conce ptually indisti ng uishable from specia l-purpose districts, which are ex pressly includ ed in the

19“loca l g overnme ntal entity ” definition. See Tex. Gov’t C ode § 554.001(2). Ag ain, i t defie s logic

that the leg islature intended to extend the Whis tleblower Act’s pro t ections and prohibitions to discrete specia l-purpose districts—for example, a crime- control district or a development district—but deny

any protec tion to employ ees of district courts. Reg ardle s s o f wh ether a district court is proper ly char acte rized as a “state judicial
ag ency ” (st ate g overnme ntal entity ) or “a political subdivision of the state” (loca l g overnme ntal entity ), it is appar en t t h at the Whis tleblower Act’s protec tions and prohibitions wer e intended to
ap p l y b roadly to all levels of state and local g overnme nt. Would the statute be clea rer if distr i ct
courts h ad been expressly mentioned? Certainly

. I s the scope of the Act—and deriva tively , its waiver of sover eig n immunit y

—unclea r bec ause the re is no such r efe renc e? No. Given the sta t utory definitions, the common meaning of t he undefined words used in them, the statute’s p u rp o se, and the onerous conseque nce of excluding district courts and their employ ees fr om these terms, I would hold that, under the circ umstances prese nted here , a district
court judge can be “an appropr iate law enfor ceme nt auth o ri t y ” wi t hin the meaning of section 554.002(b) of

the Whist leblower

Act.

CONCLUSION The dominan t p urpose of the Whis tleblower Act is “to enhanc e openness in
g overnme nt and compel the g overnme nt’s compliance with the law by protec ting those who inform authorities of wr ong doing.” Barth , 178 S.W .3d at 162. The law must be liberally construed w ith a view of acc omplishi ng this paramount purpose. I believe the majority ’s hy perte chnica l divisi on of the court -o f- i n q u i ry proce ss into discrete components and its overly restric tive rea ding of the
20definitions and r e q u ir e me n ts in the Whis tleblower Act amount to leg alistic hairsplitting that subverts the leg islative purpose and intent of the Act. Be cause such technica lities and constructions should not be used to thwar

t the Act’s pur

pose, I dissent.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Filed: September

19, 2014

21