Texas Dept. of Human Services v. Green

Citation855 S.W.2d 136
Decision Date19 May 1993
Docket NumberNo. 3-92-059-CV,3-92-059-CV
PartiesTEXAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. George GREEN, Appellee.
CourtCourt of Appeals of Texas

Dan Morales, Atty. Gen., James Todd, Appellate Coordinator, Austin, for appellant.

D. Douglas Brothers, Austin, for appellee.

Before POWERS, ABOUSSIE and BEA ANN SMITH, JJ.

ON MOTION FOR REHEARING

BEA ANN SMITH, Justice.

The opinion issued by this Court on March 17, 1993, is withdrawn, and this opinion is filed in place of the earlier one.

George Green sued the Texas Department of Human Services ("DHS"), his former employer, alleging a retaliatory firing in violation of Tex.Rev.Civ.Stat.Ann. art. 6252-16a (West Supp.1993) ("the Whistleblower

                Act" or "the Act"). 1  The trial court rendered judgment on a jury verdict, awarding Green $3,459,831.87 in actual damages, $10,000,000 in exemplary damages, $160,000 in attorney's fees, plus pre- and postjudgment interest.  DHS appeals.  We will affirm the trial court's judgment
                
BACKGROUND

In 1983, Green began employment with DHS as an architect, with responsibility for reviewing DHS construction contracts and advising his supervisors as to the contractors' compliance with contractual terms. During the course of his six-year employment with DHS, Green observed what he believed was a pattern of fraud and corruption among DHS procurement officers. 2 Green discussed his concerns about the misconduct with his supervisors, but became dissatisfied with what he perceived to be a lack of responsiveness to the problems he identified. In August 1989, Green advised numerous DHS employees at various levels that he intended to report the problems to authorities outside DHS.

Shortly thereafter, in September 1989, DHS began a thorough investigation of Green's long-distance telephone use. Scrutiny of all calls placed from Green's extension for two and one-half years revealed only one improper call, carrying a long-distance charge of thirteen cents. The investigators determined that all other suspect calls were authorized business calls. DHS referred the results of the investigation, including Green's single violation (the thirteen-cent call), to the district attorney for prosecution.

In late October 1989, DHS commenced a second investigation of Green, focusing on his use of sick leave. 3 This investigation involved an audit of Green's sick-leave records and covert surveillance of his activities during those working hours when he was excused to receive physical therapy. The audit revealed several occasions when Green left work to attend therapy, but no corresponding record existed to show his attendance at the therapy session. DHS surveillance revealed one occasion on which Green failed to attend a therapy session. 4

Based on Green's alleged violations of DHS work rules (involving abuse of sick leave, falsification of official DHS documents, and telephone misuse), DHS fired Green on December 12, 1989. DHS referred the matter of the alleged violations to the district attorney's office, which sought and obtained a grand-jury indictment of Green for falsifying documents, a third-degree felony. Tex.Penal Code Ann. § 37.10(c) (West Supp.1993). Green meanwhile filed suit under the Whistleblower Act on March 9, 1990. The district attorney later offered to dismiss the criminal charges if Green would drop his whistleblower suit. Green refused. Shortly before the trial of the criminal case, the district attorney's office dismissed the charges against Green.

Green's whistleblower suit was tried to a jury in August and September 1991. The trial court rendered judgment on a jury verdict finding that DHS had fired Green in retaliation for his reporting activities and awarding damages. The trial court denied DHS's motion for judgment non obstante veredicto (n.o.v.) and motion for new trial. Advancing fifteen points of error on appeal, DHS contends the trial court erred: (1) in refusing to hold that governmental immunity barred Green's claims; (2) in admitting and excluding evidence; (3) in denying DHS's motions for judgment n.o.v. and new trial because the evidence is legally and factually insufficient; (4) in dismissing jurors for cause and in failing to submit DHS's requested jury instructions; and (5) in denying DHS a fair trial (cumulative error).

DISCUSSION

In its first point of error, DHS argues that the trial court erred in rendering judgment on the verdict because governmental immunity bars both the suit and the liability for an award of damages against DHS, a state agency. 5 DHS asks us to hold that the Whistleblower Act does not grant public employees the right to sue governmental entities because the Act lacks an express, unambiguous waiver of governmental immunity. 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."). "Unambiguous" means "susceptible of but one meaning." Lawrie v. Miller, 45 S.W.2d 172, 173 (Tex.Comm'n App.1932, holding approved).

DHS argues that the legislature must not have intended to waive governmental immunity because the Whistleblower Act permits a public employee to recover actual and unlimited exemplary damages, "as the surreal verdict in this suit demonstrates." DHS maintains that the Act only creates a cause of action against individual state or local officials and not against the governmental entity itself as employer. 6

The relevant portions of the Act prohibiting retaliation and creating certain remedies for public employees state,

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.

....

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.

(b) In addition to amounts recovered under Subsection (a) of this section, a public employee whose employment is suspended or terminated in violation of this Act is entitled to:

(1) reinstatement in his former position;

(2) compensation for wages lost during the period of suspension or termination; and

(3) reinstatement of any fringe benefits or seniority rights lost because of the suspension or termination.

In determining whether the legislature unambiguously waived the State's governmental immunity with these words, we are guided by this Court's previous examination of the Act's text. In Travis County v. Colunga, we determined that the statute as a whole evidences 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. 753 S.W.2d 716, 718-19 (Tex.App.--Austin 1988, writ denied).

In effecting the first goal, the legislature directed its proscription of retaliatory firing against a "state or local governmental body," and not against the individual supervisors through whom that body might act. See § 2. From the legislature's focus on the governmental body as the fountainhead of the prohibited conduct, we perceive an unambiguous intent to direct the Act's penalties at the same entity. This understanding is wholly consistent with the Act's second goal, securing lawful conduct from those who manage the affairs of the governmental body. In its wisdom, the legislature obviously determined that subjecting the governmental body, and not the individual agent, to the Act's highest penalties would enhance the Act's deterrent effect. Because it thus bears the primary risk for violations of the Act, the governmental body has the principal incentive to oversee the conduct of its agents to the greater protection of public employees.

In light of the legislature's purposes, we decline to read the Act as limiting a public employee's cause of action for retaliation to a suit against an individual supervisor. Indeed, such an interpretation cannot be reconciled with section 5(a) of the Act, which provides for a civil penalty not to exceed $1,000 to be imposed against individual supervisors for violations of the Act. The attorney general or appropriate prosecuting attorney sues to collect this penalty, and because any funds collected must be deposited in the state treasury's general revenue fund, an injured public employee derives no benefit from a penalty levied under section 5. See § 5(a), (b).

Nowhere else does the Act expressly refer to individual supervisors, much less target them for liability. 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 a meaning and purpose. Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex.1985). Similarly, every word omitted from a statute must be presumed to have been excluded for a reason. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). Thus, the express mention of individual supervisors in section 5(a) and nowhere else constrains us to interpret the Act's other sections as excluding additional liability of individual supervisors. Because governmental bodies (including state agencies) are, therefore, the manifest objects of the Act's other liability provisions, we must decline DHS's invitation to extend the liability of individual supervisors when the legislature itself has not done so.

Other courts have similarly construed the Act in order to accomplish the legislative goals: "Article 6252-16a has a remedial purpose. It is designed to enhance openness in government and...

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