Travis County v. Colunga, 3-87-231-CV

• Court: Court of Appeals of Texas
• Citation: 753 S.W.2d 716
• Docket Number: No. 3-87-231-CV,3-87-231-CV
• Parties: TRAVIS COUNTY, Texas, Appellant, v. Rosemary COLUNGA, Appellee.
• Decision Date: 11 May 1988

Page 716

753 S.W.2d 716 TRAVIS COUNTY, Texas, Appellant,
v.
Rosemary COLUNGA, Appellee. No. 3-87-231-CV. Court of Appeals of Texas,
Austin. May 11, 1988.
On Rehearing June 29, 1988.

Ken Oden, Co. Atty., Sam Lively, Asst. Co. Atty., Austin, for appellant.

Jerri Lynn Ward, Mullen, MacInnes, Redding & Grove, Austin, for appellee.

Before POWERS, CARROLL and ABOUSSIE, JJ.

POWERS, Justice.

Travis County appeals from a judgment of the district court awarding Rosemary Colunga money damages, based on the jury's verdict, in her statutory cause of action brought under Tex.Rev.Civ.Stat.Ann. art. 6252-16a (Supp.1988), the "whistle-blower statute." We will affirm the judgment.

THE CONTROVERSY

We shall summarize the controversy as shown by evidence that supports the verdict and judgment.

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Travis County employed Rosemary Colunga as a parks worker at Precinct 4 Park, known as "Richard Moya Park." While working at the park, Colunga saw that county employees were not taking proper safety precautions in their use and storage of pesticides and herbicides: they did not wear protective gear when applying the poisons (the County did not furnish such gear to its employees); the employees were not instructed in proper safety procedures; the park was not closed to the public during application of the poisons, or for a reasonable time thereafter; the poisons were stored in unlocked shelters some 50 feet from a children's play area; and the poison containers were not safely discarded.

Colunga reported her observations and fears to those having authority over her, first to her immediate superior, then to the "line supervisor," the "precinct manager," and finally a "road and bridge supervisor," buttressing her complaints with published materials concerning the proper application, storage, and disposal of such poisons and containers. She did not procure any change in the practices. During the course of her complaints, she was demoted, transferred from Precinct 4 and back again, required to dig trenches with only a pick and without a shovel even though one was available, and prohibited from eating lunch in the county office with other employees. Undeterred, Colunga requested a meeting with Moya, the County Commissioner for Precinct 4, concerning the safety violations previously described. Moya agreed to meet in his office on a particular day.

Colunga asked John Douglas, a staff member of her union, to attend the meeting with her. On the appointed day, Douglas appeared at Moya's office before Colunga. Douglas and Moya began to argue over Colunga's allegations. Colunga arrived as the two men were parting, Moya following Douglas and taunting him with the statement "Sue me, big boy." Moya denied making this statement, although he admitted exchanging obscenities with Douglas and threatening to have the Sheriff remove Douglas if he did not leave and take Colunga with him. The meeting thus aborted and the County discharged Colunga the same day. That evening, Colunga contacted the Texas Department of Agriculture and complained about the County's application, storage, and disposal of the poisons and containers. The Department inspected the park the next day, verified that the County's mishandling of the poisons constituted various violations of the law, and ordered the County to correct such practices.

Some four months after her discharge and almost immediately after she filed the present lawsuit, the County reinstated Colunga. She was, however, assigned to a precinct park some 50 miles from her home where, for justifiable reasons, she feared for her safety. At her request and based on health reasons, the County transferred her to a work site closer to her home. Before trial, she received several anonymous telephone calls threatening retaliation if she did not abandon her suit against the County. Afterwards, on two separate occasions when she was driving her automobile, she was forced from the roadway by trucks she could not identify. On other occasions, the anonymous callers threatened injury to her dogs. These threats were apparently carried out when one of her dogs was shot to death and the other mauled.

On the basis of such evidence, the jury found the elements necessary for Colunga to recover on the statutory cause of action authorized public employees in article 6252-16a. Specifically, the jury found Colunga in good faith reported a violation of law to Moya, the County terminated her employment for that reason, and the County acted with malice. The jury assessed Colunga's actual damages at $20,000 and awarded exemplary damages of $30,000. The trial court gave her judgment for those sums, together with interest and $11,368.75 in attorney's fees, from which judgment the County appeals.

THE COUNTY'S POINT OF ERROR

The County does not challenge the validity of the jury's determinations that the

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County maliciously terminated Colunga's employment because she in good faith reported violations of the law to Moya. Instead, the County contends in a single point of error that Colunga was not entitled to judgment, as a matter of law, because:

The trial court erred in ruling that a county commissioner [Moya] was the "appropriate law enforcement authority" for the purposes of ... art. 6252-16a.

(emphasis added). In its argument, the County substitutes the definite article "the" for the indefinite article "an" that is actually employed in article 6252-16a § 2: "an appropriate law enforcement authority." (emphasis added).

The substitution of "the" for "an" assumes as a premise the validity of one of the two arguments advanced by the County under its point of error: that there can be only a single "appropriate" authority having the power of enforcement, for the purposes of art. 6252-16a. Thus, the County "contends that the appropriate authority for alleged pesticide misuse was the Texas Department of Agriculture" because that Department is by statute given comprehensive control over pesticide and herbicide use (including the powers of licensing, registration, rulemaking, and investigation) and an express statutory directive to "enforce" the statutes it administers in the matter of herbicides and pesticides, as well as any rules adopted by the Department thereunder. See Tex.Agri.Code Ann. §§ 75.001-76.203 (1982 & Supp.1988). If the theory is sound, it follows of course that neither Moya nor the County could be the "appropriate law enforcement authority" contemplated by the Legislature in art. 6252-16a.

The County's second argument advances the theory that Moya could not be the "appropriate law enforcement authority" because a single county commissioner, such as he, may act only through the multi-member commissioners court; that is to say, his acts alone may not bind the county. See, e.g., Tarrant County v. Smith, 81 S.W.2d 537 (Tex.Civ.App.1935, writ ref'd). The rule the County relies upon is sound; the issue reduces to its applicability in the present case.

THE STATUTE

The Legislature, in § 2 of art. 6252-16a, prohibits the following acts by counties and other local governmental bodies:

A [county] 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...