Texas Dept. of Human Services v. Hinds

• Decision Date: 21 July 1993
• Docket Number: No. 08-92-00314-CV,08-92-00314-CV
• Citation: 860 S.W.2d 893
• Parties: TEXAS DEPARTMENT OF HUMAN SERVICES of the State of Texas, Appellant, v. Gary HINDS, Appellee.
• Court: Texas Court of Appeals

Page 893

860 S.W.2d 893

TEXAS DEPARTMENT OF HUMAN SERVICES of the State of Texas, Appellant, v. Gary HINDS, Appellee.

No. 08-92-00314-CV.

Court of Appeals of Texas,

El Paso.

July 21, 1993.

Rehearing Overruled Oct. 13, 1993.

Dan Morales, Atty. Gen. of Texas, Edwin N. Horne, Asst. Atty. Gen., Gen. Litigation Div., Austin, for appellant.

Howell Cobb, III, El Paso, for appellee.

Before KOEHLER, BARAJAS and LARSEN, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from a suit brought pursuant to Texas Revised Civil Statutes, Article 6252-16a, more commonly referred to as the Texas "Whistleblower" Act. Trial was by jury. The Texas Department of Human Services of the State of Texas, Appellant, attacks the judgment in favor of Gary Hinds, Appellee, by nine points of error. We reform the judgment of the trial court and affirm the judgment as reformed.

I. SUMMARY OF THE EVIDENCE

Gary Hinds, Appellee, worked for the Texas Department of Human Services ("TDHS") for twelve years as an Eligibility Caseworker I at their offices located in El Paso. Appellee's duties required him to conduct interviews with potential clients and process their applications to determine their eligibility for various federal and state assistance programs.

In an effort to properly safeguard the expenditure of federal funds, the Federal government elected to maintain close scrutiny of the accuracy with which State employees make benefit determinations of eligibility. In the early 1980's, the Federal government began to "threaten" states which compiled unacceptable error rates, including Texas, with funding sanctions or the withholding of funds. In response, Texas initiated its corrective plan that included completion of a form or document known as the "Service Review Instrument" or "SRI". Texas developed the SRI in an attempt to improve the quality of caseworker evaluation and the processing of client cases. In addition, the SRI was designed to improve the quality of documentation, assist a caseworker's understanding of the case history, and provide an objective source for evaluating the quality of worker documentation. As a part of the SRI program, the main office of TDHS in Austin randomly selected five of each worker's cases on a monthly basis, and reviewed the case files to ensure appropriate documentation had been obtained, and all other pertinent information processed. By doing so, the main office at Austin sought to identify common errors being made in the field, reduce errors in eligibility determination, and ultimately avoid the potential imposition of any federal sanctions.

In July or August of 1987, Ralph Briones, one of Appellee's supervisors, instituted a policy whereby caseworkers under his direction were requested to review the cases "randomly" pulled by the main office in Austin before the main office actually reviewed the files. As part of this practice, Briones permitted and encouraged caseworkers to fix or supplement any documentation that had been previously omitted when the case was originally processed. Appellee was requested to perform such a review of his own cases that had been "randomly" pulled, and he did so. Two days later, Appellee questioned the practice to his immediate supervisor, Oscar Peregrino. On September 1, 1987, Appellee again raised questions, this time with Briones directly, who allegedly stated, " 'you know I think that's illegal.' " Thus, the record shows that over the course of a year and a half, Appellee purportedly made reports to Peregrino once, Briones on two occasions, Briones' supervisor Antonio Ortiz once, and Ortiz' supervisor, James Harvey, once.

According to Appellee, Briones reacted negatively when he initially questioned the practice. In addition, there appeared to be immediate retaliation by Briones toward Appellee. Other co-workers also noticed a pattern of retaliation toward Appellee. In October of 1987, Appellee received his first adverse personnel action in twelve years of employment with TDHS. In January 1988, Appellee received his first unfavorable employee review. Later, after he perceived increased pressure and retaliation, Appellee submitted his resignation.

II. DISCUSSION

In Point of Error No. One, TDHS asserts Article 6252-16a fails to adequately waive the State's sovereign immunity from suit. See Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980) ("It is a well-established rule that for the Legislature to waive the state's sovereign immunity, it must do so by clear and unambiguous language."). TDHS argues that the Act only permits suit against individual state or local officials and not against the governmental entity itself as employer. The issue presented in this initial point of error, then, is whether the Act--reading entirely in terms of governmental acts--creates only a cause of action against governmental officials.

The Third Court of Appeals recently addressed the identical issue. Texas Department of Human Services v. Green, 855 S.W.2d 136 (Tex.App.--Austin, 1993, n.w.h.). The Third Court examined this question in reference to the Act's two legislative purposes:

(1) to protect public employees from retaliation by their employer when, in good faith, employees report a violation of law; and

(2) in consequence, to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies.

Green, 855 S.W.2d at 142; citing Travis County v. Colunga, 753 S.W.2d 716, 718-19 (Tex.App.--Austin 1988, writ denied). To effect the first goal, the Court noted that the legislature directed the proscription at governmental entities. For example, the statute specifically provides in Section 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.

In Section 1(3), the Article further provides;

'Public employee' means a person who performs services for compensation under a written or oral contract for a state or local governmental body.

Tex.Rev.Civ.Stat.Ann. art. 6252-16a (Vernon Supp. Pamphlet 1993). The Court then found that directing the focus of the statute at governmental bodies is "wholly consistent" with the second goal. Green, 855 S.W.2d at 142. Finally, the Court held that the provisions of the Whistleblower Act unambiguously direct the penalties of the Act at the governmental entity and not individual officials and further unambiguously waives the states governmental immunity. Id. at 142-43.

We agree with our sister court's conclusion that the Legislature is presumed to have chosen the statutory language with care and that every word in a statute is presumed to be intentionally used with meaning and purpose. Green, 855 S.W.2d at 142-43; see also Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex.1985). Therefore, we also find it significant that the statute only mentions individual supervisors in one section, i.e., Section 5(a). That section provides for a civil penalty against individual supervisors who violate the Act. However, the attorney general or appropriate prosecuting attorney sues to collect the penalty, and the employee receives no benefit. Thus, we agree that the absence of any other reference to individual supervisors "constrains us to interpret the Act's other sections as excluding additional liability of supervisors when the legislature has not done so." Green, 855 S.W.2d at 142-43. Appellant's first point is overruled.

In Points of Error Nos. Two and Three, Appellant contends there is legally and factually insufficient evidence to support the jury's findings that Appellee made "a report in good faith of an illegal act" and that the alleged retaliatory acts were in response to these reports. We disagree.

As set out above, the evidence establishes that Appellee made several reports over the course of a year and a half regarding the practice of supplementing the SRI. During the course of these reports, Appellee described the practice as "troubling," "cheating," "dishonest," "most probably illegal" and according to the testimony of one of his immediate supervisors, Ralph Briones, "illegal." Nevertheless, TDHS attempts to discredit this evidence by labeling it as "passive," making only "vague" references to any illegality. We find these contentions to be wholly without merit.

Case law addressing the Whistleblower Act, provides that the Act will be construed liberally to accomplish its remedial purpose. Castaneda v. Texas Dep't of Agric., 831 S.W.2d 501, 504 (Tex.App.--Corpus Christi 1992, writ denied). Moreover, a "report" is defined as "any disclosure of information regarding a public servant's employer tending to directly or circumstantially prove the substance of a violation of criminal or civil law, the State or Federal Constitution, statutes, administrative rules or regulations." Castaneda, 831 S.W.2d at 501, 504. The statute does not require a party to make the report in any particular manner, only that there be one; and we will not engraft additional reporting requirements onto the statute. Id. Further, regarding Appellee's good faith belief that a legal violation occurred, it is enough that the evidence show that belief, regardless of whether it is in fact a technical violation of law. Id.; Lastor v. City of Hearne, 810 S.W.2d 742, 743-44 (Tex.App.--Waco 1991, writ denied) (employee who reported in good faith that a violation had occurred, but was wrong about the legal effect of the facts, held still able to recover). We find the evidence in this case to be sufficient to establish that Appellee made a report in good faith of illegal activity.

Appellant further asserts there is legally and factually insufficient evidence to support a causal connection between Appellee's reports and any subsequent retaliation. Again, we find this assertion to be without merit. During Appellee's meeting with Briones in September of 1987, Briones...