Office of the Attorney Gen. of Tex. v. Brickman
| Decision Date | 21 October 2021 |
| Docket Number | NO. 03-21-00161-CV,03-21-00161-CV |
| Citation | 636 S.W.3d 659 |
| Parties | OFFICE OF the ATTORNEY GENERAL OF TEXAS, Appellant v. James Blake BRICKMAN, J. Mark Penley, David Maxwell, and Ryan M. Vassar, Appellees |
| Court | Texas Court of Appeals |
Joseph R. Knight, Austin, for Appellee Vaear, Ryan M.
Laura J. Goodson, Thomas A. Nesbitt, Austin, Scott F. DeShazo, for Appellee Brickman, James Blake.
Don A. Tittle Jr., Dallas, Roger Topham, for Appellee Penley, J. Mark.
Judd Stone II, William S. Helfand, Sean O. Braun, Houston, Lanora Pettit, for Appellant.
Carlos R. Soltero, Gregory Sapire, Matthew Murrell, for Appellee Maxwell, David.
Before Chief Justice Byrne, Justices Triana and Kelly
This appeal concerns the application of the Texas Whistleblower Act1 to the highest echelons of our State government. The legislature enacted the Act to ensure lawful conduct by those who direct and conduct State business; to correct violations of the law by government employers that harm the public good or society; and to protect public employees who promote these purposes. Crucially, this appeal also implicates the State's fundamental policies of governmental transparency and accountability. In light of these purposes and policies, we decline to adopt the interpretation of the Act proposed by the Office of the Attorney General of Texas (OAG), which would have the effect of stripping whistleblower protections from employees who might report misconduct by the thousands of elected officials throughout the State—particularly by those who direct and lead the agencies of this State.
Appellees James Blake Brickman, J. Mark Penley, David Maxwell, and Ryan M. Vassar are former high-ranking employees of the OAG.2 In late September 2020, they made reports to the Federal Bureau of Investigation, the Texas Rangers, and other law-enforcement authorities, alleging that they believed Texas Attorney General Ken Paxton and/or the OAG had or might be engaged in bribery; tampering with a governmental record; abuse of official capacity; bank fraud; obstruction of criminal investigations; obstructing, influencing, or impeding an official proceeding; tampering with a witness; money laundering; and violations of the Racketeer Influenced and Corrupt Organizations Act.3 They gave notice of those reports to the OAG on October 1, 2020, and by mid-November, all four had been fired.
After filing unsuccessful grievances with the OAG, appellees sued the OAG, asserting claims under the Act and seeking reinstatement. The OAG filed a motion to dismiss under rule 91a, see Tex. R. Civ. P. 91a, arguing that the OAG's immunity from suit was not waived under the Act because appellees only claim to have reported unlawful acts "committed personally by the Attorney General, who is neither the ‘employing governmental entity’ nor ‘a public employee,’ " and had not alleged facts demonstrating that they made a good-faith report of illegal conduct to an appropriate law-enforcement authority. See Tex. Gov't Code §§ 554.0035, .002(a) (governmental entity may not take adverse personnel action against public employee who reports in "good faith" violation of law by "employing governmental entity or another public employee" to appropriate law-enforcement authority). The trial court denied the motion to dismiss, and the OAG filed this appeal under the statute that authorizes an interlocutory appeal from an order that "grants or denies a plea to the jurisdiction by a governmental unit."4
Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). As explained below, we affirm the trial court's denial of the OAG's motion to dismiss.
Under rule 91a, a party may move to dismiss a claim on the grounds that it has no basis in law, meaning that the allegations, taken as true, and inferences reasonably drawn from them, would not entitle the claimant to the relief he seeks, or that the claim has no basis in fact, meaning no reasonable person could believe the pleaded facts. Tex. R. Civ. P. 91a.1. "In ruling on a Rule 91a motion to dismiss, a court may not consider evidence but ‘must decide the motion based solely on the pleading of the cause of action, together with any [permitted] pleading exhibits.’ " In re Farmers Tex. Cnty. Mut. Ins. , 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding) (quoting Tex. R. Civ. P. 91a.6). We review a trial court's ruling on a rule 91a motion de novo. Id. The OAG sought dismissal based entirely on an asserted lack of jurisdiction, another issue we review de novo. See City of Austin v. Liberty Mut. Ins. , 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.) (citing Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ); see also San Jacinto River Auth. v. Medina , 627 S.W.3d 618, 621 (Tex. 2021) (). Because a rule 91a motion challenges the sufficiency of the pleadings, we determine whether appellees alleged facts demonstrating the trial court's jurisdiction to hear the case, looking to their intent and construing the pleadings in their favor. See Miranda , 133 S.W.3d at 226 ; City of Austin , 431 S.W.3d at 822.
Sovereign immunity protects the State and its political subdivisions from being sued unless the State has waived immunity or otherwise consented. See Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 655 (Tex. 2008) ; Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 374-75 (Tex. 2006). The general rule is that "a statutory waiver of sovereign immunity must be construed narrowly," and the statutory language waiving immunity must be clear and unambiguous. In re Smith , 333 S.W.3d 582, 587 (Tex. 2011) (orig. proceeding). However, "[i]f a statute is curative or remedial in its nature the rule is generally applied that it be given the most comprehensive and liberal construction possible." Burch v. City of San Antonio , 518 S.W.2d 540, 544 (Tex. 1975) ; see Traxler v. Entergy Gulf States, Inc. , 376 S.W.3d 742, 744-45 (Tex. 2012) (). This and other appellate courts have observed that the Act is a remedial statute and thus should be construed liberally. See, e.g., Texas Dep't of Crim. Just. v. McElyea , 239 S.W.3d 842, 849 (Tex. App.—Austin 2007, pet. denied) ; University of Houston v. Barth , 178 S.W.3d 157, 162 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The Act provides that a governmental entity may not suspend, terminate, or take other adverse personnel action against a "public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." Tex. Gov't Code §§ 554.0035, .002(a). A public employee who is subjected to adverse personnel action in violation of the Act may sue the employing governmental entity, the sovereign immunity of which is "waived and abolished to the extent of liability for the relief allowed" under the Act,5 id. § 554.0035, and may seek injunctive relief, actual damages, attorney's fees, reinstatement, and lost compensation, id. § 554.003(a), (b).
We first summarize appellees’ pleadings to decide whether the allegations are such that appellees may avail themselves of the protections of the Act or instead establish a lack of jurisdiction such that the trial court should have granted the OAG's motion to dismiss.
This case involves the alleged relationship between Paxton and Nate Paul, who owns numerous real-estate-investment companies. Appellees alleged that Paul and a "political action committee of a law firm representing Nate Paul's interests" had each donated $25,000 to Paxton's campaign, that Paul had employed a woman with whom Paxton had a personal relationship, and that Paul or his entities had assisted in a "major remodeling project" at Paxton's home. Starting in 2019, at least sixteen of Paul's entities filed for bankruptcy protection; foreclosure proceedings related to more than twelve of his entities had begun; he was being investigated by the FBI and other law enforcement; and in August 2019, the FBI obtained warrants to search Paul's house and offices. Appellees alleged that starting in 2019, Paxton used OAG resources in Paul's favor and "improperly interfere[d] in [Paul's] civil disputes and criminal matters," and that his "abuse of the OAG to benefit Paul" increased in 2020, when he "became less rational in his decision making and more unwilling to listen to reasonable objections to his instructions." In their petition, appellees made detailed allegations about how Paxton acted or directed OAG staff to act on Paul's behalf, particularly in the areas of open-records requests, the OAG's intervention in a lawsuit, an opinion related to foreclosure, and investigations into Paul's adversaries, as summarized below.
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