Texas Dept. of Criminal Justice v. Terrell

• Decision Date: 29 December 1995
• Docket Number: No. 12-93-00297-CV,12-93-00297-CV
• Citation: 925 S.W.2d 44
• Parties: TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant v. Terry L. TERRELL, Appellee.
• Court: Texas Court of Appeals

Page 44

925 S.W.2d 44

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant v. Terry L. TERRELL, Appellee.

No. 12-93-00297-CV.

Court of Appeals of Texas Tyler.

Dec. 29, 1995.

Rehearing Overruled Feb. 8, 1996.

Louis Carrillo and Adrian L. Young, Austin, for appellant.

Robert J. Thomas, Austin, for appellee.

HADDEN, Justice.

This is an appeal from a judgment in a whistleblower case. Terry L. Terrell ("Terrell") sued the Texas Department of Criminal Justice ("TDCJ"), his former employer, alleging that TDCJ violated the Texas Whistleblower Act (the "Act") ¹ by terminating him for reporting violations of law in good faith. The trial court rendered judgment on a jury verdict, awarding Terrell $452,808.00 in actual damages, $250,000.00 in punitive damages, court costs, attorney's fees, and pre- and post-judgment interest. In its six points of error, the TDCJ challenges the legal and factual sufficiency of the evidence, the purported waiver of sovereign immunity, the award of "out-of-pocket expenses", pre- and post-judgment interest, and the admissibility of certain evidence concerning American Correctional Association policy. We reverse and remand.

We will first address point of error four dealing with waiver of sovereign immunity, and then address the sufficiency arguments raised in points one and two. Because of our holdings in points one and two, it will not be necessary to address the remainder of the TDCJ points.

Pertinent sections of the Act provide:

. . . . .

Sec. 2. A state or local governmental body may not suspend or terminate the employment of, or otherwise discriminate against, a public employee who reports a violation of law to an appropriate law enforcement authority if the employee report is made in good faith.

Sec. 3. (a) A public employee who alleges a violation of this Act may sue for injunctive relief, damages, or both.

(b) A public employee who sues under this section had the burden of proof, but it is a rebuttable presumption that the employee was suspended or terminated for . . . . .

reporting a violation of law if the employee is suspended or terminated not later than the 90th day after making a report in good faith.

Sec. 4. (a) A public employee who sues under this Act may recover:

(1) actual damages;

(2) exemplary damages;

(3) costs of court; and

(4) reasonable attorney's fees

. . . . .

TEX.REV.CIV.STAT.ANN. art. 6252-16a (Vernon Supp.1990).

In its fourth point of error, TDCJ contends that the trial court erred in overruling its motion for summary judgment, which alleged the defense of sovereign immunity, and in entering judgment against TDCJ. Specifically, TDCJ argues that the rulings were improper because the Act itself does not waive the state's sovereign immunity from liability, and that, at most, the Act waives immunity from suit only. TDCJ maintains that, unless the waiver of both immunity from suit and immunity from liability has been stated in explicit and unambiguous terms, the courts should refuse to find waiver. See Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 211 (Tex.1989); Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980).

Terrell argues that the intention of the legislature in enacting a law should be construed from the law itself, and that the aim and object of construction should be to ascertain and enforce the legislative intent, not defeat, nullify, or thwart it. City of Mason v. West Texas Util. Cos., 237 S.W.2d 273, 278 (Tex.1951). Terrell maintains that the language in a statute is presumed to be selected and used with care and, likewise, every word or phrase in a statute is presumed to be intentionally used with meaning and purpose. Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex.1985). Terrell further argues that since the legislature chose to include damage provisions within the scope of the Act, the plain meaning of such provision would be to allow not only suit against the State but also the waiver of liability as to damages.

A review of the Act itself reveals that it specifically authorizes suit against a governmental body, but contains no explicit language granting or waiving immunity from liability. ² However, it is clear from the language of the statute that the legislature intended to provide a public employee with a cause of action in which he would be entitled to recover damages and other remedies against the State. Knowlton v. Greenwood Indep. Sch. Dist., 957 F.2d 1172 (5th Cir.1992); Texas Dept. of Human Serv. v. Green, 855 S.W.2d 136 (Tex.App.--Austin 1993, writ denied). Therefore, we conclude that the legislature intended to waive the governmental agency's immunity from suit as well as liability. Point four is overruled.

In its first and second points of error, TDCJ claims that the evidence was legally and factually insufficient to support the jury's findings that: (1) Terrell qualifies as a whistleblower, and (2) he was terminated for reporting a violation of law. Before addressing these sufficiency points, we will summarize the evidence as disclosed by the record.

TDCJ-ID

The Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") operates the prison system of the State of Texas. It is a para-military organization with 26,000 employees, which functions through a chain of command and operates forty-six separate prison units throughout the state. Wardens of each unit report to a Regional Director who, in turn, reports to a Deputy Director of Operations. These offices function under the Director of TDCJ-ID.

In 1986, Terrell became the warden of Beto I Unit, the largest prison unit of TDCJ-ID. His immediate supervisor was Northern Regional Director, Marshal Herklotz ("Herklotz"). Terrell and Herklotz knew each other To maximize the application of the skills and experience of its personnel, TDCJ-ID's policy was to use a team approach to the management of a unit. The management team at Beto I consisted of the warden, one or more assistant wardens, and a building major who was responsible for the security of the building. Because of the growth of the prison systems and the dictates under a federal court order in force at the time, assistant wardens and majors for each unit were selected by promotion boards made up of senior officials and staff.

well, having begun their service with the state prison system about the same time in 1970. Herklotz's immediate supervisors were Wayne Scott, Deputy Director of Operations, and James Collins, the Director of TDCJ-ID. Collins reported to the Executive Director of TDCJ, James Lynaugh, and Lynaugh was directly responsible to the Texas Board of Criminal Justice, the members of which were appointed by the Governor of Texas, Ann Richards. Selden Hale, an Amarillo attorney, was serving as chairman of the Board at all times pertinent to this case.

RELATIONSHIP BETWEEN TERRELL AND HERKLOTZ

Through the years, a personality conflict developed between Terrell and his supervisor, Herklotz. It reached the point where Beto I personnel became divided into two camps--the Terrell camp and the Herklotz camp. In 1989, George Flowers, a long-time friend of Herklotz, was assigned to work for Terrell as the major at Beto I. In 1990, Harry Kinker was assigned to be an assistant warden at Beto I. Terrell considered Kinker and Flowers to be a part of the Herklotz camp. This conflict between Terrell and Herklotz was being watched by Deputy Director Scott. Scott knew that, in the interest of the organization, someone would have to be transferred if the conflict and complaints did not stop.

THE FLOWERS COMPLAINT

Soon after Kinker and Flowers were assigned to work with Terrell at Beto I, Terrell complained to Herklotz about their assignments. On October 23, 1990, Terrell brought formal charges against Flowers for gross negligence of duty for his failure to properly respond to prison intelligence information concerning an inmate stabbing incident. Terrell reported these charges to Herklotz on October 25, 1990.

In accordance with TDCJ-ID policy, Deputy Director Scott appointed a neutral officer to investigate the charges. The neutral hearing officer ultimately reduced the charges from gross negligence to substandard duty performance and placed Flowers on probation for one month. The officer's decision to reduce the charges was based upon the fact that intelligence information such as that received by Flowers was commonly received by prison officials, and did not necessarily warrant a response. He also noted that two other officials who received the information did not deem it necessary to respond, and were not charged. Terrell did not agree with this result.

THE NOONAN COMPLAINT

Eric Noonan was the chief of classification ³ at Beto I and worked under the supervision of Terrell. On October 25, 1990, Noonan attended a Northern Region classification officers' meeting in Huntsville conducted by the new Staff Service Officer, Terry Warren. Herklotz saw Noonan at the meeting and asked him about his working relationships with inmates and other Beto I personnel. No names were mentioned.

On October 26, 1990, Terrell wrote to Deputy Director Scott complaining that Herklotz had verbally abused Noonan at the meeting. Though Terrell was not present, his perception of what happened is contained in the formal complaint, which reads as follows:

Allegation Mr. M.D. Herklotz made reference to the possibility of a unit transfer to Mr. Eric Noonan. This suggestion was made as a harassment technique in an attempt to influence Mr. Noonan against what was perceived by Mr. Herklotz as cooperation in an official investigation pursued Immediate Action Requested Removal of Mr. M.D. Herklotz from administrative responsibilities pertaining to Beto One. Request that this removal be documented in written format to Mr. Herklotz's office with copy to Beto One Warden's office.

by Warden T.L. Terrell against Major G.B. Flowers.

That this allegation be referred to an investigative process apart from TDCJ-ID's Internal Affairs or...