State of Texas and TxDoT v. Lueck (Tex. 2009),
No. 06-1034 (Tex. Jun. 26, 2009)(Green)(Whistleblower Act claim dismissed)
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK; from
Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06)
motion to dismiss denied
The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction.
Justice Green delivered the opinion of the Court. [16-page opinion in pdf]
View Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009)
OPINION EXCERPTS:
Under the Texas Whistleblower Act, sovereign immunity is waived when a public employee
alleges a violation of Chapter 554 of the Government Code. TEX. GOV’T CODE § 554.0035. A
violation under Chapter 554 occurs when a governmental entity retaliates against a public employee
for making a good-faith report of a violation of law to an appropriate law enforcement authority. Id.
§ 554.002(a). George Lueck was fired from the Texas Department of Transportation (TxDOT) after
he sent an e-mail to the director of the Transportation Planning and Programming Division, reporting
what he believed to be violations of state and federal law. Lueck then sued the State of Texas and
TxDOT under the Whistleblower Act, alleging that he “was fired because of his good faith reports
of TxDOT’s violation of state and federal law.”
We hold that, because Lueck’s e-mail report only
warned of regulatory non-compliance, not a violation of law, and because an agency supervisor is
not an appropriate law enforcement authority to whom a report should be made, Lueck’s allegation
affirmatively negates the court’s subject-matter jurisdiction over the cause. The State’s sovereign
immunity is not waived, and thus, we reverse the court of appeals’ judgment and dismiss the case
for lack of subject-matter jurisdiction.
TxDOT points to uncontroverted allegations within Lueck’s
pleadings, claiming that they affirmatively negate jurisdiction because the e-mail sent to Randall did
not report a violation of law to an appropriate law enforcement authority. As for the report element,
Lueck’s pleadings affirmatively negate the existence of a reported violation. Lueck’s fifth amended
petition states that Lueck “believed and reported in good faith that if the Department did not pursue
an immediate and positive resolution to Cooper’s October 29, demand[,] the Department would
violate federal and state law by failing to remedy non-compliance with the federal and state reporting
requirements.” This allegation merely recites Lueck’s prediction of possible regulatory non14
compliance. Such a regulatory non-compliance of this kind does not equate to a violation of law
under which a law enforcement authority regulates or enforces within the meaning of the
Whistleblower Act. See TEX. GOV’T. CODE § 554.002(b). Further, Lueck attached the e-mail report
to his pleadings, and the only discernable violation in the report itself states that TxDOT’s current
system for reporting traffic data “is not capable of handling this data and will, therefore, never be in
compliance.” This references the violation reported in the 1995 Federal Highway Administration
report, which is only intended to call TxDOT’s attention to a previous, publicly-known instance of
regulatory non-compliance. At most, this reference to a previous violation of a federal standard
expresses disagreement with remedial measures taken by TxDOT after it was already knowingly out
of compliance. An internal policy recommendation of this kind is not a report of a violation of law
that the Whistleblower Act was designed to protect.
Even if this e-mail did report a violation of law, Lueck’s supervisor, Mr. Randall, is not an
appropriate law enforcement authority to whom such a report should be made. As the head of a
division within TxDOT, Randall could neither regulate nor enforce the law that Lueck alleged had
been violated. See TEX. GOV’T CODE § 554.002(b)(1), (2) (providing that an appropriate law
enforcement authority is “part of a state or local governmental entity . . . 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”); Needham, 82 S.W.3d at 320 (holding that
TxDOT was not appropriate law enforcement authority to enforce laws related to driving while
intoxicated, reasoning that “the particular law the public employee reported violated is critical to the
determination”). In fact, Lueck’s e-mail report indicates that he knew Randall was not the proper
authority within TxDOT to regulate the reported violations because he recommended that Randall
have his e-mail “readily available” when discussing the implications of suspending the STARS
program with other TxDOT divisions. Cf. Needham, 82 S.W.3d at 320–21 (holding that an
employer’s power to conduct internal investigative or disciplinary procedures does not satisfy
standard for appropriate law enforcement authority under the Act). This conclusively establishes that
Lueck could not have formed a good-faith belief that Randall was authorized to enforce such
violations. See id. (holding that claim may fall under Whistleblower Act if employee formed a
reasonable, good faith belief that report was made to an appropriate law enforcement authority, given
employee’s training and level of experience). Therefore, as a matter of law, Lueck’s pleadings
affirmatively demonstrate that he did not allege a violation under the Whistleblower Act.3 For these
reasons, we reverse the court of appeals’ judgment and dismiss the cause for lack of subject-matter
jurisdiction.