*2 KOEHLER, Before LARSEN MeCOLLUM, JJ.

OPINION

KOEHLER, Justice. is primary question recog- the courts of this state should whether of ac- private nize a “whistleblower” Burgess Appel- (Burgess), Russell tion. B. lant, alleging brought against Appellees, suit him wrongfully terminated had employment and discriminated complained learned of and him because he among conspiracy some of the em- about a El Treat- ployees to defraud the Paso Cancer Center, the Cen- theft some of specially excepted property. Appellees ter’s any Burgess’ pleadings for failure to state amend, Upon his refusal to cause of action. prejudice. court his suit with dismissed error, complains single point In a determining erred that the action for an there is no cause of employ- wrongfully terminated from who acts of discrimination ment and suffers other acts of the criminal as a result employees. affirm. We other FACTS

RELEVANT shortly petition Burgess alleged in his employed in he was March after by El Paso Engineering Technician Senior (Center), he Treatment Center Cancer conspiracy learned among grounds some cial had failed (the employees, Lyons Mel Cen- causes of action. administrator), Lewis, Danny ter’s then Pat STANDARD OF REVIEW Rojas, Arp, being and Joe the latter *3 Special may supervisor Burgess, Lewis, Rojas, exceptions be used to to and question the sufficiency plaintiffs in law of a by property. defraud the Center theft of its Lile, 536, petition. Lara v. 828 S.W.2d 541 employees He claimed that these would re- 1992, (Tex.App. Corpus Christi writ de good parts move from radiation machines — nied); v. Centennial Ins. Co. Commercial replace parts. and them with defective used Companies, 479, Union Ins. 803 S.W.2d 483 Lewis, He alleged Arp, Rojas also that and 1991, (Tex.App. Dist.] no [14th a — Houston operating separate were business on Cen- writ). A trial court has broad discretion Burgess, ter time. believing the activi- special ruling exceptions. Gutierrez v. conspirators ties of proba- a “would have Inc., Perry Enterprises, Karl 874 S.W.2d by ble public, com- 103, 1994, writ). (Tex.App. 105 Paso no — El promising the effectiveness of the cancer review, ruling On the trial court’s will be CENTER,” treatment at the to claimed have only upon showing of reversed a abuse of alleged conspiracy revealed the to the con- McFadden, discretion. Fuentes v. 825 spirators, managers and to the directors and 772, 1992, (Tex.App. S.W.2d 778 Paso — El of the Center. writ); Control, Quality Davis v. Pest 641 324, (Tex.App. S.W.2d 328 Beginning September [14th 1990 and continu- — Houston 1982, n.r.e.). writ ing Dist.] ref 'd The test to be involuntary until his termination Octo- applied 1991, determining for a trial whether repeated ber Burgess attempts made has abused its discretion is whether advise managerial and warn directors and any guiding court acted without reference employees of the Center of what he had words, principles, rules and or in other acted ignored, Burgess observed. At first was arbitrary and unreasonable manner. subsequently subjected harassed and to os- Inc., Aquamarine v. Operators, Downer 701 tracism, jokes, practical poor and evaluations 238, (Tex.1985), denied, 241-42 cert. S.W.2d Lewis, Arp, at Rojas. the hands of and After 1159, 2279, 476 U.S. 106 90 L.Ed.2d 721 S.Ct. Arp suspended, promoted Lewis was Fuentes, (1986); 825 S.W.2d position Burgess’ supervisor. his as Lewis proceeded Burgess, put to demote him on In our review the trial court’s probation, placed position him in and Burgess’ dismissal causes action on perform complete- work for which he was not exceptions, special accept as true all ly qualified. Burgess sought approval from allegations pleadings. the factual in his Ar Weikel, Allen the new administrator1 of the America, anda v. Ins. Co. North 748 Center, any help. but was refused His em- 210, (Tex.1988); Tan, Amador v. was, thereafter, ployment wrongfully termi- 131, (Tex.App. 855 S.W.2d Paso — El by nated and Weikel the Center. He subse- 1993, denied); writ v. Bill Armendariz Sears Center, quently Weikel, Arp2, sued the Lew- 529, Supermarket No. is, Rojas damages caused n.r.e.). (Tex.App. Paso ref'd writ — El wrongful in- termination and intentional By sustaining Appellees’ special exceptions in anguish, claiming fliction of case, mental the trial as court concluded a mat engaged had in numerous acts of discrimina- Burgess ter of failed to law had him, termination, tion action. of law are Conclusions “good subject retaliation faith” the always appellate to review conspiratorial Sears, Nichols, activities of some of his fellow v. court. Roebuck and Co. employees. Burgess elected to stand on his (Tex.App. — Houston denied); pleadings following sustaining spe- Corp. order writ [14th Dist.] MJR employed by Arp, Burgess 1. Weikel as Center its ad- to obtain service later Unable replace ministrator in October 1991 to Mel non-suited him. Lyons position. retired who had from that legislature, apply none of which ed Vending B B & denied). has Burgess, Court created App. — Dallas employee is exceptions: where an two PRIVATE “WHISTLEBLOWER” per- solely he refused to discharged because

CAUSE OF ACTION act, illegal and where an form an primarily so that an retaliatory has terminated been dis contends to, paying contributing acts, employer can avoid discriminatory charge on the facts from, actionable, although pension fund. benefits alleged, should be Admittedly, neither these pres not S.W.2d at candidly recognizes that Texas does Burgess, it his apply ently of action such al recognize causes that, situation argues that the fact petition. hope He leged in his based contention *4 the gov criteria set forth in protecting statutes his meets the “whistleblower” case report employees, for in Doggett ernmental termination of Winters. concurrence Justice proba a ing theft that “would have internal upon public” the is or

ble adverse effect concurring lengthy opinion In his policy. against public should be defining the of “the ele purpose written for employees action for who ments of a cause of in longA established rule Texas that exposing from employer retaliation for may suffer employment for an indefinite term be workplace that have a within activities in the at will without cause. Win terminated and public,” Co., upon the Publishing probable adverse effect v. ters Houston Chronicle (Tex.1990). Winters, argument Doggett persuasive a gives 795 723 In the Justice which, just a of action as Supreme summary judg for such new cause Court affirmed a “carefully failing says, he must crafted.” Win employee an at-will for be ters, 725, Dog- 795 S.W.2d at 732.4 Justice to state a cause of action when he sued his action, in of retaliatory discharge. gett this cause employer former for advocates “prove by prepon a employee the must first Winters claimed that he had been terminated principal solely reporting management of the evidence that the as a result of derance employer for retaliation was that employees engag of motivation the Chronicle were activities, report, internally public or ing illegal employee’s either in several workplace falsely ly, inflated of of activities within the an number sub upon scribers, inventory probable a engaging theft and would have Additionally, participating illegal public.” the Id. “kickback” scheme. proposes employee must make a Id. at The numerous the Court identified abroad, first, showing good making faith: exceptions, to the both Texas and rule, exposé motive other than bad employee at-will from some termination none second, ones, having “reasonable applied to Id. which Winters. at 724.3 Aside statutory a that the activities would have from number creat- cause to believe 1078, Winters, 69, (Tex.1989), granted, cert. 494 U.S. In Court summarized as 71 1804, (1990). S.Ct. 108 L.Ed.2d 935 110 follows: However, McClen- 795 S.W.2d 723-24. long standing rule in is that em Texas subsequently Su- reversed U.S. don was preme ployment may for an indefinite be termi term ground com- that the state Court on & nated at will and without cause. East Line arising damages for out mon law cause of action Scott, 99, v. Tex. 102 R.R.R. Co. 10 S.W. employee unlawfully dis- that an was claim (1888). date, this court has created To charged prevent his attainment benefits Service, exceptions. Sabine Inc. v. two In Pilot plan preempted was Section under an ERISA Hauck, (Tex.1985), we (Employee Income Se- 514 of ERISA Retirement exception recognized employ an a narrow for 1974). Ingersoll-Rand Co. v. curity Act discharged sole ee ‘for the reason that McClendon, S.Ct. 498 U.S. illegal perform employee an act.' refused (1990). L.Ed.2d recognized exception ... We have also another “judicial proponent re- a known as who demonstrates that the Never straint,” Doggett displays discharge employ Justice little confidence principal reason for ability Legislature to deal with contributing paying of the Texas ben er’s desire avoid lengthy perhaps stemming his problem, employer’s pension under fund. this efits body. Ingersoll-Rand in that service McClendon probable a public.” effect adverse reverse the trial court’s decision and remand broadly Id. at 732. asserts that for trial on the merits. “anywhere

since no court ... has refused to recognize a cause action under circum STANDARD OF REVIEW compelling alleged stances as as those in this The trial court this dismissed ease after case_[where effectiveness of cancer- t]he granting special exceptions defendant’s fighting equipment radiation is a life or death plaintiffs replead petition. failure to his In [,] matter ... we should do so now. We can ” situation, accept pled we as true all facts envision problems some real connected with plaintiffs pleadings determine whether proposed such a cause of action and metic make out City a cause of action. Hubler v. ulously Doggett.5 outlined Justice Not Christi, Corpus only will the of action require careful Civ.App.—Corpus Christi ref'd crafting drafting give also careful em n.r.e.). ployers adequate of what notice can and do, job legislature cannot better left to the CAUSE OF ACTION Although sympathize than to the courts. whistleblowing The cause of action we, Burgess’ plight, with as an intermediate private carefully work environment out court, precedent are bound and are not lined in Doggett’s Justice Winters concur *5 authorized to a new create cause action. rence, years opinion four old. now To occasions, As recently on two stated case, prima make plaintiff out a facie the changes in the common law should'be left to principal must show that the motivation for Legislature Supreme the Texas and our employer employee’s retaliation was the re Gutierrez, 107; Court. 874 S.W.2d at Ama port, public, either internal or of activities dor, 134; see v. Baylor S.W.2d at Hicks within workplace prob the that would have a Center, University Medical public. able Win denied). (Tex.App.—Dallas ters, employee S.W.2d at 732. must today, Under the law it exists (1) the trial two-prong showing good make a faith: its did not abuse discretion in either report employer activity that the in sustaining Appellees’ special exceptions malice, or good spite, faith and not result of dismissing Burgess’ (2) suit for failure to re- jealousy, personal gain; or that the plead. Burgess’ point of error is overruled. employee cause to had reasonable believe the activity would adverse effect on have an The trial order of court’s dismissal is af- public. Id. Actual violation statute is . firmed. necessary, plaintiff not must show: wrongdoing [t]he asserted about which LARSEN, Justice, concurring. complaint is must be made demonstrated Although acknowledge I the Texas to contravene substantial societal concerns Supreme formally not recognized Court has reflected in our and federal constitu- today, action we address here I statutes, judicial tions and decisions and separately it urging write to do so. The sole decisions, regula- administrative rules and question is this whether we should tions, public policy. other statements recognize private whistleblowing cause of recog- action the Court declined to Burgess’ petition Mr. out a makes cause of (“at facts”) nize these this time on Winters action under these criteria. Publishing v. Houston Chronicle (Tex.1990). high recognized Believing pro- It is time this this Texas employees acting public case meets all the elements of the cause of tection for years clearly Doggett’s action Justice interest. In the four since outlined Winters concurrence, empowered legislature if to do so I was decided has would failed act criteria, example, employer good 5. For in a would small what (such office) lawyer reasonably business one or two faith to be as a believed activities that indefinitely whistleblowing probable have to retain would have adverse em- effect on the ployee proposed public? Doggett who meets all of the circum- area. Under these this vital of action is judicially-created cause stances a The cause only appropriate, but critical.

not forth, it clearly set of action has been crafted, comprehend I thoughtfully delay incorporating it reason for further Although into law. I would reverse our it the merits if it case and remand my mandate as an intermediate were within so, judge recognize to do I this is a appellate high For that power given to our court. reason, majority opinion. I concur in the WINKINS,

Thomas Donald E. Cave and Cave, Appellants, Marcella D. Jr., Mytelka, Buckley, Andrew J. John A. Galveston, appellants. INVESTMENTS, FRANK WINTHER *6 Bower, INC., Poole, Douglas Kenneth J. Frederick W. Gautier Galveston Cowen, Galveston, appellees. Partnership, Appellees. Beach Limited David E. No. 01-92-01258-CV. MIRABAL, Before COHEN HEDGES, JJ. Texas, Appeals Court of (1st Dist.). Houston OPINION Aug. 1994. MIRABAL, Justice. Published Part Pursuant take-nothing sum- This is an from a Tex.R.App.P. mary judgment against plaintiffs a suit

alleging and DTPA1 violations. fraud three, through cross-points

In one jurisdic- appeal for want of motion to dismiss tion, lacks appellees assert that this Court to time- jurisdiction appellants failed because appeal. ly perfect their summary judg- Appellants appeal from a The sum- signed on March mary judgment did not become final until the trial court September when nonsuiting appellees’ coun- signed an order Having no motion for new terclaims. filed trial, days appellants had until October appeal. perfect their September TejcBus. (Vernon Supp.1994). § 17 1987 & a Com.Code Ann.