Home » Blog » Texas Whistleblower Protection for Government Employees Against the Government

The Texas Whistleblower’s Statute (V.T.C.A. Government Code sec. 554.001 et.seq.), prohibits discharge or other adverse personnel actions against governmental employees who, in good faith, report a violation of law by the governmental entity or another public employee to an appropriate law enforcement authority. A report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to regulate under or enforce the law alleged to be violated in the report or investigate or prosecute a violation of criminal law (see below). The employee must file his suit within 90 days after the alleged act. However, in the case of a state or local government with a grievance system, the employee must first seek redress through that system, and he must file his grievance within 90 days. To allow additional time for the grievance system, the time spent in the process will not count toward to 90 day limitations. If a final decision is not rendered before the 61st day after the date procedures are initiated, the employee may elect to exhaust the applicable procedures or terminate the procedures, in which event the employee must sue within the time remaining under section 554.004. The employee may recover reinstatement, injunctive relief, actual damages, court costs, and attorney’s fees. As actual damages, an employee may not recover compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses in an amount that exceeds: (1) $50,000 for entity with less than 101 employees; (2) $ 100,000 for an entity with more than 100 and less than 201 employees; (3) $200,000 for an entity with more than 200 but less than 501 employees; and $ 250,000 for an entity with more than 500 employees.

A serious problem for an employee in utilizing the Whistleblower law involves what counts as a “law” which has been violated and who is the appropriate law enforcement authority to report.  Making the wrong choice on either of these issues derails your claim before it has even begun.  The Texas Supreme Court has taken an extremely restrictive view of the Act; almost to the point of appearing to be discouraging its use.  Normally, the government wants to encourage whistleblowers to come forward because this acts as as watchdog on the government.  The restrictive action of the Court has come mostly in the area of who is the appropriate law enforcement authority for an employee to report the violation to in order to gain protection from the Act.  According to the Supreme Court, the term, “law enforcement authority” should be read in accordance with its commonly understood meaning.  To the Court, this means an authority who actually promulgates regulations or enforces the law, or to authorities that pursue criminal violations.  The powers to promulgate regulations or enforce law are outward-looking and do not encompass internal supervisors charged with in-house compliance and who must refer suspected illegality to external entities. In Texas A&M University-Kingsville v. Moreno, 399 S.W.3d 128 (Tex.2013), the Court held that the authority to whom the plaintiff reported alleged illegality had the power to compel the university’s compliance with certain regulations, but the Court concluded this power fell short of what is required by the Act, which is “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or…authority to promulgate regulations governing the conduct of such third parties.”  In Ysleta Independent School District, 417 S.W.3d 443 (Tex. 2013), the Texas Supreme Court held that an employee’s report to various school district officials, including superintendent and several trustees, did not constitute reports to “appropriate law enforcement officials.”

The Act protects employees who report a violation of the law. The issue of what is a “law” under the Act is also difficult. To invoke the Act’s waiver of governmental immunity, the plaintiff must identify in his petition filed in court the specific law that was violated by the conduct the plaintiff reported.  A “law” for purposes of the Act might include an administrative rule under certain circumstances.  In one case, the plaintiff reported another employee’s illegal use of county time and resources.  The conduct in question did not violate a statute but did violate a personnel rule of the commissioner’s court of the county, adopted pursuant to a statute authorizing the commissioner’s court to adopt such rules.  The court in that case held that the plaintiff’s report of the embezzlement constituted a protected report.  Fannin County Community Supervision & Corrections v. Spoon, 2014 WL 3513388 (Tex.App.-Texarkana 2014).  Until the Texas Supreme Court opines on the issue of whether an administrative rule is a “law” under the Act, it will be unsettled.