Eastland Court of Appeals Sustains Whistleblower Suit

Originally published by Thomas J. Crane.

1. Under the Texas Whistleblower Act, a person who works for a governmental entity and who reports violations of law is protected. Chad Carter worked for the City of Abilene as an engineer. He complained to his superiors that the city had hired contractors who were using unlicensed engineers. Using unlicensed engineers violates the Texas Engineering Practice Act. Mr. Carter was soon afterward fired. He sued under the Texas Whistleblower Act. The City responded with three different pleas to the jurisdiction. A peal to the jurisdiction is equivalent to a motion to dismiss for failure to state a claim. The plaintiff said he made three reports of violation of law: to the city engineer, the city attorney and to the Texas Board of Professional Engineers. The TWA requires that a person make the report to a law enforcement official with responsibility for the violation.

The trial court denied the plea to jurisdiction. The city appealed, saying Mr. Carter did not report the violation of the Engineering Practice Act to an appropriate law enforcement agency. The city argued that a complaint to the Texas Board of Professional Engineers was not the appropriate law enforcement agency. But, the plaintiff pointed to specific provisions of the Texas Occupation Code providing that the Board does enforce the Engineering Practice Act. Since this is a plea to the jurisdiction, the court is required to accept the plaintiff’s allegations as true. But, in this instance, the court can simply look at the statute and see if the Occupations Code says what the employee says it says. The decision does not explain why the city would offer an argument that can be verified so easily. But, in making an argument easily shown to be false, the city impeaches itself.

According to the plaintiff, the Board looked into the matter and did investigate his complaint. It reached an agreement with the City of Abilene regarding the complaint. So, the Eastland Court of Appeals rejected the employer’s appeal. See the decision in City of Abilene v. Carter, No. 11-15-00121 (Tex.App. Eastland 8/10/2017)  here. Indeed, one must conclude the city’s appeal was frivolous.

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