City of San Antonio v. Heim

• Decision Date: 09 October 1996
• Docket Number: No. 03-95-00021-CV,03-95-00021-CV
• Parties: 12 IER Cases 264 CITY OF SAN ANTONIO, Appellant, v. Michael HEIM, Appellee.
• Court: Texas Court of Appeals

Page 287

932 S.W.2d 287

12 IER Cases 264

CITY OF SAN ANTONIO, Appellant, v. Michael HEIM, Appellee.

No. 03-95-00021-CV.

Court of Appeals of Texas Austin.

Oct. 9, 1996.

Rehearing Overruled Nov. 20, 1996.

Thomas H. Crofts, Jr., Crofts, Callaway & Jefferson, San Antonio, for Appellant.

Douglas Brothers, Brothers & Associates, Austin, for Appellee.

Before POWERS, ABOUSSIE and KIDD, JJ.

ON MOTION FOR REHEARING

POWERS, Justice.

We withdraw our previous opinion of July 31, 1996 and substitute the following. Michael Heim recovered judgment for compensatory and punitive damages in his suit against the City of San Antonio under the Texas Whistleblower Act (the "Act"). See Act of May 22, 1993, 73d Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 609-11 (Tex. Gov't Code Ann. §§ 554.001-009, since amended) (hereinafter "Former Code"). The City appeals. We will affirm the judgment.

THE CONTROVERSY

Heim is employed as a police officer in the "DWI" task force of the San Antonio Police Department (the "Department"). On November 15, 1991, he arrested an off-duty police officer, Sergeant Garza, for driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (West 1994). Heim became the subject of a series of disciplinary suspensions beginning the next day. ¹

In August 1992, Heim sued the City under the Whistleblower Act alleging the suspensions were part of a course of discrimination by other officers and supervisors in the Department, taken against him in retaliation for his arresting Sergeant Garza contrary to an unwritten practice in the Department of not arresting fellow officers or their family members--a practice of "professional courtesy." The jury answered special questions in Heim's favor and found $594,000 in compensatory damages ² and $500,000 in exemplary damages. The trial court rendered judgment on the verdict. The City's motion for new trial was overruled by operation of law. This appeal ensued.

LIABILITY UNDER THE WHISTLEBLOWER ACT

At the relevant time, the Act provided as follows:

A state agency or local government may not suspend or terminate the employment of or discriminate against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority.

Former Code § 554.002. On appeal, the City does not dispute that Heim acted in good faith in arresting Sergeant Garza or that Heim's reports were made to an appropriate law-enforcement authority. ³ Instead, the City contends in point of error one that Heim did not establish a cause of action because Garza's arrest was not a "violation of law" within the meaning of the Act. In point of error two, the City re-urges its contention by assigning error to the trial court's refusal to instruct the jury that a "violation of law" requires under the Act an "employer-related" violation.

The city's theory is as follows: To come within the Act, the reported "violation of law" must pertain to the government entity's internal administration. See, e.g., Texas Dep't of Human Servs. v. Green, 855 S.W.2d 136, 140 (Tex.App.--Austin 1993, writ denied) (agency employee's report of fraud and corruption among agency contract-procurement officers); City of Houston v. Leach, 819 S.W.2d 185, 188-89 (Tex.App.--Houston [14th Dist.] 1991, no writ) (auditor's report of illegal acts in use and furnishing of city property and services); City of Ingleside v. Kneuper, 768 S.W.2d 451, 453 (Tex.App.--Austin 1989, writ denied) (supervisor's report of building inspector's criminal acts in performing official duties). Garza's driving on a public street while intoxicated and while off-duty did not involve the internal administration of the police department; therefore, Heim's report of Garza's violation of law did not come within the Act. We disagree with the theory. Even if it is a correct theory, however, the evidence at trial satisfies the distinction claimed in the City's theory.

The cause of action created in the Whistleblower Act is purely statutory. We have held the Act has two remedial purposes: (1) to enhance openness in government by protecting public employees from retaliation by their employer when an employee reports a violation of law in good faith; and (2) to secure in consequence lawful conduct on the part of those who direct and conduct the affairs of government. Travis County v. Colunga, 753 S.W.2d 716, 718-19 (Tex.App.--Austin 1988, writ denied); see also Green, 855 S.W.2d at 142. The elements of the cause of action, at the time material here, were as follows: (1) a state agency or local government (2) suspends, discharges, or discriminates (3) against a public employee (4) who reports in good faith a violation of law (5) to an appropriate law-enforcement authority. ⁴ The statute is not ambiguous in any respect. Neither the right nor the remedy exists at common law; the provisions of the Act are exclusive and a court may not add to them. See Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1088 (1926). A court may act only in the manner provided in the statute that created the right. See Bullock v. Amoco Prod. Co., 608 S.W.2d 899, 901 (Tex.1980). We therefore are not free to add the limiting qualification the City seeks.

The record shows in all events that Heim's report of Garza's violation did pertain to the internal administration of the Department. Garza's criminal act in driving while intoxicated, if true, was a violation of his official duty as a police officer to obey as well as enforce the law. Tex.Code Crim. Proc. Ann. art. 2.13 (West 1979); See Davis v. Passman, 442 U.S. 228, 246, 99 S.Ct. 2264, 2277, 60 L.Ed.2d 846 (1979). His intoxication was, in addition, a violation of Department regulations requiring that police officers maintain at all times their competency and availability for duty. ⁵ And the internal discrimination against Heim was, if his evidence is believed, grounded in Garza's arrest. ⁶ The practice of such discrimination, which Heim reported to his superiors and which the jury implicitly believed occurred, itself constitutes a patent violation of law in the Department's internal administration and is inimical to public safety and an overriding public interest in genuine and impartial law enforcement. ⁷

We hold Heim's reports came within the letter, spirit, and purpose of the Act. We therefore overrule points of error one and two.

In point of error three, the City contends the evidence is legally insufficient to support the jury verdict. The City argues that our review of the evidence must be made under the following theory of causation: "the employee's protected conduct must be such that, without it, the employer's prohibited conduct would not have occurred when it did." Department of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995). In contrast, the liability question was submitted to the jury as follows:

Did the City of San Antonio discriminate against Heim in retaliation for reporting in good faith a violation of law to an appropriate law enforcement authority?

The case was not tried under the Hinds theory and the City did not suggest to the trial court, by request, objection, or otherwise, that a causation element was omitted from the charge. On appeal, parties are restricted to the theory on which the case was tried. Davis v. Campbell, 572 S.W.2d 660, 662 (Tex.1978). We will therefore summarize and review the sufficiency of the evidence under the theory of liability submitted to the jury. See Syndex Corp. v. Dean, 820 S.W.2d 869, 873 (Tex.App.--Austin 1991, writ denied); cf. Hinds, 904 S.W.2d at 637-38.

Numerous witnesses testified that the Department discriminated against Heim in retaliation for his arresting Garza in violation of the Department's unwritten code of "professional courtesy." ⁸ After Garza's arrest, Heim was the subject of nine complaints, made mainly by persons within the Department, alleging various violations of Department regulations. Following investigations by the Department's Internal Affairs ("IA") Section, Chief of Police Gibson suspended Heim six times for a total of eighty-six days. ⁹ In the eleven years Heim served on the police force before the Garza arrest, Heim averaged less than two complaints per year, filed mainly by civilians, and received only one three-day suspension in 1989. The jurors were free to assign weight to the timing, number, and severity of the post-Garza complaints and disciplinary suspensions in light of Heim's previous conduct record and the date of Garza's arrest. In addition, the jury could reasonably believe the actions taken against Heim were part of an institutional practice. Two officers testified they also received suspensions and transfers to other duties following their reports of misconduct by fellow officers.

The evidence also reasonably permits an inference that Heim's suspensions resulted from selective enforcement of Department regulations. Several officers testified that many of the violations for which Heim was suspended were regularly committed by other officers but did not result in disciplinary action against the offenders. For example, the evidence showed there had been only one reported violation of the contraband-search rule by any officer during the previous year but Heim was suspended twice in seven months, for a total of thirty-one days, when contraband was found on his prisoners. At trial, Chief Gibson conceded that Sergeant Morales, supervisor of the "Detox" unit, might have selectively enforced against Heim the contraband-search rule. ¹⁰

The record contains testimony that during a meeting in March 1992, Sergeants Hooks and Jacobs, supervisors of the DWI unit, threatened Heim's job security and personal safety. Sergeant Hook told Heim that he needed to "back off" and start conforming. Hook said he did not want to see Heim get hurt. Heim was told that he had a wife and family to look after and that he was too old to look for another job. He was required to attend unusually long meetings with his supervisors and...