Rosaena Resendez v. Texas Commission on Environmental Quality
391 S.W.3d 312
| Tex. App. | 2012Background
- Resendez, a longtime Texas state employee, worked for the Commission as a TERP Usage Monitor for over 34 years; TERP funds were administered by the Commission which audited in 2010 and sought to improve applicant verification.
- An audit recommended validating social security numbers and verifying IDs; the Commission planned to adopt the Death Master File and photocopy IDs by Spring 2011.
- In Oct. 2009, Resendez investigated TERP fraud involving non-citizens and fraudulent TERP awards and reported concerns to Dayton and Walton, who told her to stop and later disciplined her.
- Resendez alleged she was terminated on Aug. 4, 2010, after raising concerns about fraud; she filed a Texas Whistleblower Act suit seeking damages for retaliation.
- The Commission filed a plea to the jurisdiction arguing sovereign immunity barred the suit absent a valid whistleblower claim; the trial court granted the plea; Resendez appealed.
- The appellate court reversed, holding there were fact questions on each element of a valid whistleblower claim, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Resendez stated a valid Whistleblower Act claim to waive immunity | Resendez asserts all §554.002 elements were pled and supported by affidavits | Commission argues pleadings fail to show a valid whistleblower claim | Fact questions exist; jurisdiction denied for now; remand warranted |
| Whether Resendez had a good-faith belief of a legal violation (subjective component) | Resendez believed officials were violating the law by not reporting fraud | Court should find lack of good faith given absence of formal law violation | Subjective good faith shown; issue for fact finding |
| Whether Resendez's belief was objectively reasonable given training and experience | Her training and admonishments supported reasonableness | No clear evidence supporting reasonable belief that supervisors were legally required to report | Objective reasonableness created a fact issue; not conclusive as a matter of law |
| Whether Brymer was an appropriate law-enforcement authority to receive the report | Brymer had authority over TERP and could enforce reporting | Needham/Lueck limit to external authorities; Brymer allegedly internal | Question of fact; Brymer could be an appropriate authority under the circumstances |
| Whether Resendez's report to Brymer and the Senator constituted reporting to an appropriate authority | Reports to Brymer and Senator Hinojosa satisfied reporting element | Unclear if reports targeted a proper authority; possible reliance on state auditor | Fact question on reporting to appropriate authority; not dispositive at this stage |
Key Cases Cited
- State v. Lueck, 290 S.W.3d 876 (Tex. 2009) (limited waiver under §554.0035 to determine jurisdictional viability)
- Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (subject-matter jurisdiction reviewed de novo; pleadings liberally construed)
- Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (pleadings and jurisdiction issues viewed liberally; merits considered when necessary)
- Okoli v. Univ. of Houston, 317 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2010) (good-faith belief in appropriate authority can be established via supervisory duty to enforce rules)
- Gentilello v. Univ. of Tex. Sw. Med. Ctr., 317 S.W.3d 865 (Tex. App.—Houston [1st Dist.] 2010) (supervisor's authority to enforce rules can establish appropriate authority for whistleblower)
- Moreno v. Texas A&M Univ.-Kingsville, 339 S.W.3d 902 (Tex. App.—Corpus Christi 2011) (employer-level reporting can satisfy appropriate authority under certain facts)