State v. Lueck

In State v. Lueck, 290 S.W.3d 876 (Tex. 2009), the supreme court held that a Texas Department of Transportation ("TxDOT") employee was not entitled to the protection of the Whistleblower Act because the employee's report, which was contained in an e-mail to his supervisor, concerned violations of regulations or internal policy recommendations--not actual violations of the law and not the kind of reports "that the Whistleblower Act was designed to protect." 290 S.W.3d at 885. The court further noted that, even if the employee had reported a violation of the law, the employee had not made a report to an appropriate law enforcement authority. Id. at 885-86. An examination of the pleadings and the attached e-mail revealed that the e-mail demonstrated that the supervisor, who was the head of a division within TxDOT, was not an appropriate law enforcement authority because he "could neither regulate nor enforce the law that the plaintiff alleged had been violated." Id. The e-mail indicated that the plaintiff employee knew that the supervisor "was not the proper authority within TxDOT to regulate the reported violations" because the employee recommended in the e-mail that his supervisor have the report available when discussing the matters "with other TxDOT divisions." Id. at 886. Thus, the e-mail "conclusively established" that the employee "could not have formed a good-faith belief" that his supervisor "was authorized to enforce such violations." Id. The Supreme Court of Texas determined what a party must plead to succeed on a claim under the Act. See Lueck, 290 S.W.3d at 881. Section 554.002(a) provides that "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 . . . ." Tex. Gov't Code Ann. 554.002(a) (Vernon 2004). The Leuck court determined there are but two jurisdictional requirements under section 554.0035. Lueck, 290 S.W.3d at 881. For the government's immunity to be waived, the plaintiff must: (1) be a public employee and; (2) allege a violation of this chapter. Id. Thus, it necessarily follows that a party must actually allege a violation of the Act for there to be waiver from suit. Id. As such, the elements under section 554.002 must be considered in order to ascertain what constitutes a violation and whether a party has alleged said violation. Id. The Supreme Court concluded Lueck did not report a violation of law and additionally that the supervisor, in that case, was not an appropriate law enforcement authority. Lueck, 290 S.W.3d at 885-886. It explained that Lueck's supervisor, as the head of a division within TxDOT, could not regulate nor enforce the law that Lueck alleged had been violated. Id. at 885. In further concluding that Lueck did not have a good faith belief that his supervisor was an appropriate law enforcement authority, the Supreme Court reasoned that Lueck himself "knew his supervisor was not the proper authority within TxDOT to regulate the reported violations because he recommended his supervisor have his e-mail "readily available" when discussing the alleged violation with other TxDOT divisions." Id. at 886 . Thus, if anything, Lueck seems to recognize that in some cases a plaintiff may reasonably believe a report to an appropriate law enforcement authority may be made internally.