WICHITA COUNTY, Texas, Appellant, v. Allen HART and Ernie Williams, Appellees.
No. 3-93-358-CV.
Court of Appeals of Texas, Austin.
Oct. 12, 1994.
Rehearing Overruled Nov. 16, 1994.
885 S.W.2d 912
For the above reasons, I dissent to the court‘s judgment in paragraph I of the court‘s opinion but join the court in its reversal as stated in paragraph II of its opinion on the basis of Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1993).
CLINTON, J., joins.
R. John Cullar, Mills, Millar, Matkin & Cullar, Waco, John A. Crane, Zunker, Butler, Estes & Crane, L.L.P., Austin, for appellees.
Before POWERS, KIDD and B.A. SMITH, JJ.
KIDD, Justice.
Allen Hart and Ernie Williams (“appellees“) filed suit against Wichita County (“the County“) for wrongful termination pursuant to
BACKGROUND
The appellees were employed as law enforcement officers in the Wichita County Sheriff‘s Department. In February 1989, appellee Hart became aware of some questionable activities occurring in the department. Hart consulted with appellee Williams about the legality of a proposed gun sale and a deed of property that a local law firm had transferred to the sheriff, and the two subsequently began investigating these transactions.
Hart eventually sought the advice of Mike Cross, an investigator with the District Attorney‘s Office, about the legality of these
On May 1, 1989, Cross confronted Sheriff Callahan about the transfer of the deed. During that meeting it was revealed that the purpose of the deed transaction was to provide collateral so that the law firm could make bail bonds for its criminal defense practice. Sheriff Callahan demanded to know the identities of the complainants. Hart was terminated later that day; Williams was terminated two days later on May 3, 1989.
The appellees sued the County under the Whistleblower Act, contending that their positions as deputy sheriffs were terminated because they reported a superior‘s violation of the law. Appellees filed suit in Travis County pursuant to the special venue provision contained in the Whistleblower Act.
The appellees prevailed at trial, obtaining a substantial jury verdict for their termination. The County appeals, raising ten points of error,2 including a challenge to the trial court‘s denial of its motion to transfer venue. Because the County‘s venue challenge is a threshold issue, we address it first.
DISCUSSION
Venue
In its first point of error, the County contends that the trial court erred in denying its motion to transfer venue. If the trial court did err, we must reverse the judgment and remand the cause for a new trial. See
Section 15.015 of the Civil Practice and Remedies Code mandates, “An action against a county shall be brought in that county.”
As a general rule, the plaintiff chooses venue. Wilson v. Texas Parks & Wildlife Dep‘t, 886 S.W.2d 259, 259-61 (1994). The defendant is entitled to have a motion to transfer venue granted in only two instances: (1) the plaintiff‘s choice of venue is not proper, meaning that no venue provision permits the case to be tried in the court where the plaintiff filed suit; or (2) a mandatory venue provision requires that the case be brought in another court.4 See
The first legislature of the state made it the law in Texas that all suits against a county shall be instituted in some court of competent jurisdiction within such county.... To this mandatory provision there seems to be no exception. It was originally enacted May 13, 1846,-two days before the passage of the general venue statute, with its 11 exceptions to the rule there promulgated....
Montague County v. Meadows, 31 S.W. 694, 694 (Tex.Civ.App.-Fort Worth 1895, writ ref‘d) (citations omitted). Since its adoption, courts have consistently held that the county provision is a mandatory venue provision. One court explained that “counties are so closely identified with the sovereign power of the state that they may be sued only upon the terms and conditions prescribed by the statute.” Dial v. Crosby County, 96 S.W.2d 534, 536 (Tex.Civ. App.-Amarillo 1936, no writ); see also City of Tahoka v. Jackson, 276 S.W. 662, 663 (Tex. Comm‘n App. 1925, opinion adopted); Randall County v. Todd, 542 S.W.2d 236, 237 (Tex.Civ.App.-Amarillo 1976, no writ); Hodges v. Coke County, 197 S.W.2d 886 (Tex. Civ.App.---Amarillo 1946, no writ).
The legislature reaffirmed the holdings of these courts with its revision of the venue statute in 1983, placing the county provision in a subchapter of the Civil Practice and Remedies Code entitled “Mandatory Venue.”5 Thus, the district court was required to grant the County‘s motion to transfer venue to Wichita County unless the whistleblower provision is either jurisdictional or mandatory.
Is the Whistleblower Venue Provision Jurisdictional?
If a venue provision is jurisdictional, and suit is not filed in a proper court, the court in which the suit is improperly filed lacks the power even to transfer the cause to a court where venue is proper; the court must simply dismiss the cause. Gambill v. Town of Ponder, 494 S.W.2d 808, 810 (Tex. 1973); Federal Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943). Furthermore, the parties may not waive a jurisdictional venue provision. The language of some venue provisions unambiguously indicates that the legislature intended the provisions to be jurisdictional in nature.6 If it is unclear from the provision‘s wording whether the legislature intended the provision to be jurisdictional, the question must be resolved by statutory construction. Brown v. Owens, 674 S.W.2d 748, 750 (Tex.1984).
In Brown v. Owens, the Texas Supreme Court held that the venue provision in the Texas Tort Claims Act was not jurisdictional. In doing so, the supreme court stated that a court must consider the entire Act, including the caption of the venue provision, the wording of the venue provision, and the Act as a whole. Id.
Appellees, however, contend that a Texas Supreme Court decision and a decision from this Court indicate that the whistleblower provision is jurisdictional. Appellees rely upon Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926) and Carter v. Dean, 660 S.W.2d 866 (Tex.App.-Austin 1983, no writ). In Mingus v. Wadley, the supreme court held that the two venue provisions in the Workmen‘s Compensation Act were jurisdictional. Mingus, 285 S.W. at 1087-88 (construing Workers’ Compensation Law,8 35th Leg., R.S., ch. 103, §§ 5, 5a, 1917 Tex.Gen.Laws 269, 283-84, since repealed). The supreme court recognized that a suit under the Workers’ Compensation Act “of necessity involves the fact of the accident, the issue of the injury, and the wages of the claimant; all of which may be established with less expense, trouble, and delay in the county where the injury occurred than in any other county.” Id. at 1087. The supreme court also noted that construing the provision as jurisdictional was consistent with the general rule “that where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive, and where it confers jurisdiction upon a particular court, that jurisdiction is exclusive.” Id. at 1088. In Carter v. Dean, this Court followed Mingus, holding that section 11.67 of the Texas Alcoholic Beverage Code was jurisdictional because it “creates a right of judicial review and specifies the court wherein such review shall be conducted by a suit against the Commission.” Carter, 660 S.W.2d at 868.
In determining whether the whistleblower provision is jurisdictional, it is helpful to compare the Whistleblower Act with other statutory causes of action that contain special venue provisions. The Workers’ Compensation Act considered in Mingus replaced the common law cause of action of negligence for injuries in the course of employment with a set scheme of recovery available without regard to fault. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 560 (1916) (“[A] fixed compensation is payable to [the employee] upon the mere happening of any injury in the course of the employment, or to his beneficiaries in the event of his death from the injury, without reference to any negligence on the part of the employer, or his servants, and without regard to defenses available to the employer at common law.“). Mingus held that the venue provision in the Workers’ Compensation Act was jurisdictional. Venue provisions in statutes providing for judicial review of the orders and decisions of administrative agencies have also been held to be jurisdictional. See, e.g., Carter, 660 S.W.2d at 869; State v. Novall, Inc., 770 S.W.2d 589, 590 (Tex.App.-Austin 1989, writ denied) (construing
Venue provisions in other statutory causes of action have been held not to be jurisdictional. The Tort Claims Act, at issue in Brown, enabled individuals to bring recognized common law causes of action against units of government by abrogating sovereign
We conclude that the Whistleblower Act is more akin to the DTPA and the Tort Claims Act than the Workers’ Compensation Act or statutes permitting suits for judicial review of agency decisions. The Whistleblower Act abrogates sovereign immunity as does the Tort Claims Act, and in addition supersedes the employment-at-will doctrine. This abrogation enables government employees, when terminated for reporting illegal activities of their employers, to file suit against their employers. Additionally, like the DTPA, the Whistleblower Act creates a new cause of action. Unlike the Workers’ Compensation Act, the Whistleblower Act neither replaces a pre-existing common law cause of action, nor provides for a suit for judicial review of an agency action.
Accordingly, we hold that the whistleblower provision is not jurisdictional. Our conclusion also follows from applying the analysis of Brown v. Owens. As in Brown, the caption labels the whistleblower provision as a venue provision; the caption does not mention jurisdiction. Furthermore, the wording of the venue provision does not indicate that the legislature intended the provision to be jurisdictional in nature.
Is the Whistleblower Provision Mandatory or Permissive?
Having determined that the whistleblower provision is not jurisdictional, we now turn to the question of whether the whistleblower provision is a mandatory or permissive venue provision. The fact that the whistleblower provision is a special venue provision does not indicate that it is mandatory. Sections of the venue statute in the Civil Practice and Remedies Code incorporating special venue provisions appear under both the headings “Mandatory Venue” and “Permissive Venue.”9
The County contends that we should construe the whistleblower special venue provision as permissive because it uses the term “may.” We recognize that “courts have repeatedly distinguished between the mandatory language of ‘shall’ or ‘must’ in a venue provision and the permissive language of ‘may’ in such provision.” Portland Sav. & Loan Ass‘n, 619 S.W.2d at 246.
On the other hand, this Court has stated that “[i]n determining whether a particular usage is mandatory or permissive, the entire Act should be considered, including the object and nature of the Act, and also consequences of either interpretation.” Ramirez v. State, 550 S.W.2d 121, 124 (Tex.Civ.App.-Austin 1977, no writ) (holding that a statute which provided that suits for repayment of student loans “shall” be instituted in specific courts was a mandatory venue provision). Accordingly, we will examine the purpose of the Whistleblower Act.
The Whistleblower Act provides that its purpose is “the protection of public employees who report a violation of law.” Act of June 19, 1983, 68th Leg., R.S., ch. 832, 1983 Tex.Gen.Laws 4751, 4751 (Tex.Rev.Civ.Stat.
It is significant that during the same legislative session that the Whistleblower Act was passed, the legislature was involved in an extensive amendment of the general venue statute. The former venue statute‘s “dominant purpose” was “to give a person who has been sued the right to defend such suit in the county of his domicile.” City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466, 468 (1943). The general venue statute was amended, however, to include also “the county in which all or part of the cause of action accrued.”
With this legislative history in mind, we consider it significant that in the special venue provision of the Whistleblower Act, the legislature chose to adopt the county of the plaintiff‘s (employee‘s) residence as a proper venue. We also regard as significant the inclusion of Travis County as a venue choice, which in effect functions as a safe-harbor venue provision. Were we to construe this special venue provision as only permissive, it would create the anomaly that county employees would be the only government employees deprived of these venue choices; mandatory venue would only be proper in the defendant-county.10 Given that one of the purposes of the Whistleblower Act is to protect government employees from retaliation after reporting their employers’ violations of the law, we conclude that the legislature did not intend to penalize county employees by depriving them of the special venue provision of the Whistleblower Act. Accordingly, we hold that the special venue provision of the Whistleblower Act is mandatory.
We thus have a conflict between two mandatory venue provisions. The general scheme of the venue statute is that plaintiffs may choose between two proper venues. See Wilson, 886 S.W.2d at 259-61. We conclude the trial court properly overruled the County‘s motion to transfer since this cause was properly filed in Travis County, one of the mandatory venue choices under the Whistleblower Act. The County‘s first point of error is overruled.
Court‘s Charge
In its second, third, sixth, and seventh points of error, the County contends that the trial court erred in denying proper instructions concerning the definition of certain terms from the Whistleblower Act in the court‘s charge, and also challenges the sufficiency of the evidence to support the jury‘s findings on certain issues. The Act provides:
A state agency or local government may not suspend or terminate the employment of or discriminate against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority.
A. Good-Faith Instruction
In its second point of error, the County argues that the trial court improperly denied a proper instruction on good faith, and thus permitted the jury to disregard the unreasonable conduct and venal motivation of the appellees in reporting the alleged illegal conduct under the Whistleblower Act. At trial, the County requested an instruction defining “good faith,” which the trial court rejected.11
Under the
The County urges us to adopt a definition of good faith that is similar to that used in defamation law, and which would provide protection only in instances where the employee acts without malice or spiteful motivation. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex.1987) (discussing how conditional privileges may be lost if malice motivates the defendant‘s actions). The County bolsters its argument by relying on a definition of good faith that was suggested in Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 732 (Tex.1990) (Doggett, J., concurring). This reliance is misplaced, however, because Winters presented the issue of whether a new cause of action should be created under the common law for private employees who are terminated in retaliation for reporting violations by their superiors; it did not involve the statutory provisions of the Whistleblower Act.
Appellees respond that claims brought under the Whistleblower Act have not involved such expansive definitions of “good faith,” and that the trial court‘s good-faith instruction is consistent with prior appellate interpretations of the term. We agree. This Court previously has found that the focus of the good-faith requirement is the employee‘s belief that the reported conduct violates the law, not the employee‘s motive for reporting the conduct. Green, 855 S.W.2d at 151. Therefore, the necessary inquiry involves the objective reasonableness of the employee‘s belief, and not the employee‘s subjective motivation in reporting the conduct. Id. In examining the County‘s proposed jury instruction, we conclude that it emphasized appellees’ subjective motivation in a way unwarranted under present case law. The trial court patterned its instruction after instructions used in previous whistleblower cases, and thus did not abuse its discretion in denying the County‘s instruction. See City of Ingleside v. Kneuper, 768 S.W.2d 451, 453 (Tex.App.-Austin 1989, writ denied). The County‘s second point of error is overruled.
The County next argues that the trial court erred in refusing to grant a new trial because there was insufficient evidence that the appellees’ conduct in making the report was objectively reasonable. When re-
In the instant cause, both appellees testified that they became aware of certain questionable activities occurring in the sheriff‘s office. Hart testified that a sergeant in the office informed him that he had lost all respect for the sheriff, but then refused to discuss the matter any further. Hart testified he spoke with the office deputies who explained that the sheriff‘s department owned some property which had been transferred to Sheriff Callahan from a local law firm. The law firm allegedly was having financial difficulties at that time, and Hart became concerned because the property was transferred to Callahan personally in what appeared to be an absolute conveyance, rather than as mere security for bail bonds. At approximately the same time, Hart discovered that a deputy in the sheriff‘s office was about to sell some guns from the evidence room illegally. When he approached the deputy to question him, the deputy informed him that the sheriff had authorized the sale. Hart attempted to discuss the illegal sale with Sheriff Callahan, but the chief deputy informed him that the sheriff was handling the problem. The sheriff relieved Hart of his supervisory duties the following day. Hart then discussed with Williams the gun sale and the deed of property to the sheriff.
Hart stated at trial that he believed that the sheriff‘s office had taken the property in order to sell it to pay off a judgment against the law firm in question, and that this action harmed a local bank, which had also obtained a judgment against the law firm. He reported his suspicions to Mike Cross, the chief investigator in the Wichita County District Attorney‘s office, after Hart and Williams concluded that it would be the best course of action. Hart approached Cross about the deed because he believed that the investigator would be objective in researching whether the suspicions concerning the deed were justified. Williams testified that he consulted with FBI agent Lee Hale because there were bankruptcy proceedings and tax liens against some members of the law firm that had conveyed the property, and he was worried that they were “hiding the property” by transferring it to the sheriff.
Reviewing the testimony presented at trial, we conclude that the evidence was sufficient to support the jury‘s finding that the appellees acted reasonably. Nevertheless, the County urges us to hold appellees to a higher standard of conduct because they are law enforcement officers. We decline to adopt a higher standard for law enforcement officers since the Whistleblower Act itself makes no such distinction. Appellees investigated the suspicious activities and attempted to obtain outside advice during their investigation, and we therefore refuse to hold as a matter of law that their conduct was objectively unreasonable. We overrule the County‘s third point of error.
B. Violation of Law
In its sixth point of error, the County contends that the trial court erred in refusing a jury instruction that would have required that an actual violation of law occur in order for appellees to receive the protection of the Whistleblower Act. The trial court‘s instruction asked the jury to determine whether the plaintiffs were terminated for reporting conduct that the plaintiffs “believed to be a violation of law.” The County submitted an instruction that required the jury to find an actual violation of law, which the trial court denied. The County argues that the statute‘s express language compels this instruction, and that a court must give a statute a literal interpretation when its word-
Appellees respond that the County ignores previous cases that have provided a strong rationale for not requiring an actual violation before a whistleblower can receive the protection of the statute. In Lastor v. City of Hearne, 810 S.W.2d 742 (Tex.App.-Waco 1991, writ denied), the Waco Court of Appeals argued that the good-faith provision of the statute is meaningless if it covers only situations where an actual violation of the law occurs. The court reasoned that the good-faith requirement can be given effect only if it protects employees who report what they believe to be a violation of law, even if it is subsequently determined that there was no actual violation. Id. at 744.12 We have previously adopted the Lastor conclusion that an actual violation of law is not required. Green, 855 S.W.2d at 150. The County offers no persuasive reason to reject that conclusion now, and we therefore overrule the County‘s point of error number six.
C. Appropriate Legal Authority
The County‘s seventh point of error only concerns Williams. The County attacks the factual and legal sufficiency of the evidence to support the jury‘s finding that Williams reported a violation to an appropriate law enforcement authority. In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986), cert. denied, 498 U.S. 847 (1990). When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176.
The evidence at trial indicated that Williams was present in the room when Hart and Cross were discussing the allegations. The County argues that Cross did not recall whether Williams said anything during the meeting, and thus contends that Williams cannot obtain the protection of the Whistleblower Act for any report that Hart may have made on Williams’ behalf. It is clear from all of the testimony at trial that Hart and Williams acted together in initiating the investigation. Williams participated in virtually every aspect of the investigation and was terminated by Sheriff Callahan for his involvement. Williams was present in the room during discussions about the investigation. Although Williams may not have been a main participant in these discussions, we do believe that he was sufficiently involved to receive the protection of the Whistleblower Act.
Even if we were to conclude that Williams failed to make a report to Cross, the evidence was undisputed that Williams reported the possibility of criminal activity to FBI Special Agent Lee Hale. The County recognizes that Williams may have reported a violation of law to Hale, but asserts that Hale was not an “appropriate law enforcement authority” because, as a federal agent, Hale had no power or authority to investigate or enforce compliance with state law. An appropriate law enforcement authority includes “any public authority having the power and duty of inquiring into the lawfulness of the questioned conduct and causing its cessation if the conduct appears to be in violation of the law.” Colunga, 753 S.W.2d at 719-20.
We agree with the County that Agent Hale lacked authority to investigate state law violations. The testimony at trial, however, in-
We hold that the evidence was legally and factually sufficient to support the jury‘s finding that Williams reported the violations to an appropriate authority. Given Hale‘s testimony that he, a trained FBI agent, believed that a federal issue might develop in the case, it was not against the great weight of the evidence for the jury to find that Hale was an appropriate law enforcement authority. The County‘s seventh point of error is overruled.
Damages
A. Future Wages
In its fourth point of error, the County alleges that the trial court erred in denying a proper instruction on damages by including an erroneous category in one of the jury issues: lost future wages. The County submitted an instruction to the trial court which requested that future earning capacity be used instead, and the trial court denied the motion.
The Whistleblower Act does not specify the correct measure of damages for losses
that the plaintiff may incur in the future.
No case, however, has addressed whether “future earning capacity” is the only appropriate method for determining damages. The use of lost wages as a measure of damages has been expressly approved in at least one other category of cases: those brought under the Workers’ Compensation statute for wrongful termination for filing a workers’ compensation claim. Act of May 7, 1971, 62d Leg., R.S., ch. 115, 1971 Tex.Gen.Laws 884, 884-85 (Tex.Rev.Civ.Stat.Ann. art. 8307c, since repealed). In Carnation Co. v. Borner, 610 S.W.2d 450, 454 (Tex.1980), the supreme court concluded that an employee may recover for loss of wages in the future if those wages are ascertainable with reasonable certainty. The court found that the statutory
Citing the language of the statute, the County responds that section 554.003(b) itemizes the elements of compensation that an employee who has been wrongfully terminated can recover, and since “front pay” is not included in this itemized list, plaintiffs cannot recover for loss of future wages. The language of the Act provides that the elements under section 554.003(b) describe compensation that the plaintiff is entitled to in addition to the relief provided for in section 554.003(a).
The County also challenges the legal and factual sufficiency of the evidence to support appellees’ recovery of future lost wages. In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Alm, 717 S.W.2d at 593. If any probative evidence supports the finding, we must uphold the finding and overrule the point of error. In re King‘s Estate, 244 S.W.2d at 661; Green, 855 S.W.2d at 146. If we conclude that the finding is supported by legally sufficient evidence, we must then determine whether the evidence is factually sufficient. In doing so, we must consider and weigh all the evidence and should uphold the jury finding unless it is so against the great weight of the evidence as to be manifestly unjust or erroneous. Pool, 715 S.W.2d at 635. We are not free to substitute our judgment for that of the jury merely because we may believe that a different result may be more reasonable. Id. at 634.
The County‘s principal contention is that appellees are not entitled to recover future wages because each failed to offer evidence of a diminution in his ability to work after his termination. At trial, both appellees testified that they had not applied for law enforcement positions in Wichita and surrounding counties because they believed they would not be hired. Hart stated that his belief was based on “the coverage of my firing, being disgruntled, and now they know I filed a lawsuit and I just don‘t ... think I‘d be hired.” Hart further explained that his experience in law enforcement led him to believe that law enforcement agencies comprise a brotherhood “that stick together,” and that during his term as operations chief of the sheriff‘s department, the department had never hired an applicant who had been terminated from another law enforcement agency.
Williams testified that his failure to apply for other jobs in law enforcement was predicated on his belief that “when you‘re fired from the sheriff‘s department, and you turn around and sue him, there‘s not much chance you‘re going to get a job in law enforce-
The County‘s expert witness, Terri McCaslin, testified that there were numerous law enforcement jobs available in the Wichita County area, and indicated that, in her opinion, appellees could have obtained other law enforcement positions. The County argues that appellees offered no experts to corroborate their opinions, and therefore the evidence was insufficient to support the award. The opinions of experts are not conclusive on the jury, and a jury is free to accept lay testimony over that of experts. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). In the instant cause, the jury apparently accepted the appellees’ testimony and rejected McCaslin‘s opinion. We hold that the testimony of Hart, Williams, and Crampton constituted factually and legally sufficient evidence on the issue of future wage loss, and overrule the County‘s fourth point of error.
B. Mental Anguish
In its fifth point of error, the County complains that there was no evidence or insufficient evidence to support the jury‘s answers to questions 3(c) and 3(d), which concerned damages for past and future mental anguish. A plaintiff must show more than mere worry, disappointment, anger, resentment, or embarrassment in order to prove mental anguish. Worsham Steel Co. v. Arias, 831 S.W.2d 81, 85 (Tex.App.-El Paso 1992, no writ); Kneuper, 768 S.W.2d at 460. In Worsham, the court of appeals concluded that mental anguish “includes mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.” Worsham, 831 S.W.2d at 85-86.
In the present case, appellee Hart testified that he missed his job; that he no longer felt excitement in the type of work he did; that his life was less focused than before his termination; and that he has friends in the sheriff‘s department who no longer speak to him because they fear disciplinary actions will be instituted against them. Hart described his depression as “I just don‘t feel like doing anything, just coming home and sitting down.” Hart also testified about the effect on him of the media publicity surrounding the case:
Q: Mr. Hart, do people in the community come up and talk to you about the fact that you have been terminated?
A: Oh, yes, sir, they have.
Q: It was publicized that you were terminated; is that correct?
A: Yes. It was in the paper.
Q: Have you been called a disgruntled employee or other names of that sort?
A: Yes, sir. I‘ve been a disgruntled employee, an employee with a bad attitude, all kinds of things like that.
Q: That‘s been put in the newspaper and on the TV in Wichita Falls?
A: Yes sir.
Q: How has this caused you to feel knowing that you‘ve been terminated and you‘ve been called these names?
A: Just angered and embarrassed. I think about it every day that I just can‘t-I can‘t go back to work there.... I used to get up every morning just raring to go to work and now I don‘t. I couldn‘t wait until the next day when I was in law enforcement, and now I can‘t go back there.
Williams testified that the termination caused problems in his marriage because it
We hold that the evidence presented at trial was legally and factually sufficient to support an award of past mental anguish. The evidence clearly indicates that, at a minimum, appellees suffered public humiliation and shame as a result of their termination. We also conclude that the jury could reasonably infer that the appellees would continue to suffer mental anguish in the future. The County relies on Kneuper to support its contention that there is no evidence to support the jury‘s award. In Kneuper, we concluded that the record was devoid of any evidence to support the issue of future mental anguish because the plaintiff had been reinstated. Kneuper, 768 S.W.2d at 461. Those circumstances are distinguishable from the situation presented in the instant cause. Hart and Williams have not been reinstated, nor is either one of them currently working in law enforcement. Both testified that, four years after the termination, they were still depressed and embarrassed about it. Therefore, the rationale underlying the determination in Kneuper is inapplicable here. We conclude that the evidence supports the jury‘s inference that the appellees would continue to suffer mental anguish in the future. Point of error five is overruled.
C. Exemplary Damages
The County also challenges the legal and factual sufficiency of the evidence to
support the jury finding that the sheriff acted with malice in terminating the appellees. To award exemplary damages under the Whistleblower Act, a jury first must find that there was malice. Kneuper, 768 S.W.2d at 456-57.
The jury instruction submitted at trial defined malice as “ill-will or evil motive, or such gross indifference to or reckless disregard of the rights of others as will amount to a willful or wanton act.”16 In its brief, the County argues that the sheriff‘s actions were not motivated by the spite, ill will, or evil intent necessary to show that the sheriff acted with malice in his decision to terminate. The County, however, does not challenge the possibility that the jury could have found that the sheriff acted with gross indifference to or reckless disregard of the rights of the appellees. By failing to challenge the jury‘s finding under the complete definition used by the trial court, we conclude that the County has waived its eighth point of error.
If we were to address this point, however, we would conclude that the evidence was sufficient to support the jury‘s finding that the sheriff‘s decision to terminate was motivated by malice. Appellees offered evidence at trial that the chief deputy wrote on each appellee‘s personnel file that he was being terminated because he “initiated an investigation against the sheriff which allegations never happen [sic].” Cross, the District Attorney‘s investigator, testified that Sheriff Callahan demanded the identity of the complainants during their meeting to discuss the allegations. When the appellees’ names were revealed, Cross testified that the sheriff‘s response was “they had seen their last day in the sheriff‘s office.” Sheriff Callahan never attempted to discuss with either Hart or Williams their reasons for initiating the investigation. Hart was terminated the same day Callahan received the information
The County‘s witnesses offered a different version of the events in question. District Attorney Barry Macha testified that the sheriff requested his opinion regarding whether grounds existed to terminate the appellees. Sheriff Callahan testified that he fired Hart because of his disloyalty to the sheriff and his inability to get along with co-workers. The stated reasons for Williams’ termination were his failure to supervise personnel, his inability to function with his co-workers, and his disloyalty to the sheriff. Judge Juanita Pavlick, a former attorney with the District Attorney‘s Office, testified that she met with Sheriff Callahan when she became aware of the possibility of a whistleblower claim, and that she advised him during the meeting that she did not believe he had violated the Act.
The testimony offered at trial concerning the circumstances under which the appellees were fired clearly conflicts. We are mindful, however, that a jury is permitted to believe some witnesses and disbelieve others. McGalliard, 722 S.W.2d at 697. Cross’ testimony provides some evidence to support the jury‘s verdict. Under the factual sufficiency standard articulated in Pool, the finding of the jury was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool, 715 S.W.2d at 635.
County‘s Liability for Acts of the Sheriff
In its ninth point of error, the County challenges its liability for the wrongful acts of the sheriff because he is an independently elected official whose actions the governing body of the County is prohibited from interfering with or controlling. The crux of the County‘s argument is that the governmental body of a county is the commissioners court, and therefore, since appellees were employed by an independently elected sheriff, the County is not responsible for the appellees’ termination in violation of the Whistleblower Act.
The Whistleblower Act prohibits a local government from terminating a public employee who reports a violation in good faith.
No case has addressed the issue of what governmental offices constitute the county for purposes of the Whistleblower Act. In Renken v. Harris County, 808 S.W.2d 222, 226 (Tex.App.-Houston [14th Dist.] 1991, no writ), the court of appeals held that a commissioners court has no authority to reinstate an employee who has been terminated from his job in an elected official‘s office. The County requests that we analogize the present cause to Renken and conclude that the County is not responsible for the sheriff‘s actions. Renken, however, did not address the issue presented here regarding whether an elected county official can be considered the county for purposes of the Whistleblower Act.
The appellees respond that the County has misconstrued the use of “local government body,” and that the county as whole, including the sheriff, is the government body. Statutory support for the appellees’ proposition is found in the Texas Local Government Code. The heading of Title Three of the Code is “Organization of County Government,” and Subtitle B, which includes both the commissioners court and the sheriff, is
The appellees argue that a sheriff should be regarded as a part of county government. In County of Brazoria υ. Radtke, 566 S.W.2d 326, 328-29 (Tex.Civ.App.-Beaumont 1978, writ ref‘d n.r.e.), the sheriff was held not to be a unit of government separate from the county in a claim brought under the Texas Tort Claims Act. See Act of May 22, 1969, 61st Leg., R.S., ch. 292, 1969 Tex.Gen.Laws 874 (Tex.Rev.Civ.Stat.Ann. art. 6252-19, since repealed). In Radtke, Brazoria County was held liable for injuries the plaintiff sustained in an automobile accident caused by the negligent actions of a deputy sheriff. Radtke, 566 S.W.2d at 329. The county contended that it could not be held liable for the acts of the deputy sheriff because it did not have the legal right to control the deputy‘s actions. The court of appeals disagreed, finding that the general purpose of the Act precluded the definition of the sheriff as a separate unit of government from Brazoria County. Id. at 328. The County argues that we should distinguish Radtke from the situation presented here because the Tort Claims Act contained a provision which specified that the Act applied to every person in a unit of government, whether elective or appointive. We agree with the County that the Whistleblower Act contains no similar provision. The County, however, ignores the Radtke court‘s emphasis on policy in reaching its conclusion that the sheriff and Brazoria County were the same unit of government. The Beaumont court noted that the legislative intent underlying the Tort Claims Act would be thwarted if Brazoria County could be held liable only for the acts of the employees of the commissioners court. Id. at 329. Despite the fact that the Whistleblower Act contains no similar provision, we do not believe that the Legislature intended “county” to be construed as narrowly as the County urges us to do here.17 In the absence of specific language to the contrary, we refuse to hold that the Whistleblower Act was intended to cover only county employees who are employed by the commissioners court. We agree with the conclusion in Radtke that the county as a whole constitutes the governmental unit. We hold that the sheriff is a part of the County‘s government when he is acting in his official capacity, and consequently the County is liable for his misdeeds.18 We therefore overrule point of error nine.
Constitutionality of the Whistleblower Act
In its tenth point of error, the County alleges that the Whistleblower Act is unconstitutional because it denies due process, is void for vagueness, and violates separation of powers.
The County‘s due process claim arises from its perception that to hold it liable for the acts of the sheriff is to impose vicarious liability for actions over which it has no control. Having previously held that a sheriff represents the county for purposes of the Whistleblower Act, no vicarious liability is being imposed on the County, and thus no violation of due process has occurred.
In its contention that the statute is void for vagueness, the County asserts that, because of the statute‘s vague prohibition, courts have been forced to construe the statute liberally. The County offers as examples
It is settled that the intention of the Legislature controls the language used in an act, and in construing such act the court is not necessarily confined to the literal meaning of the words used therein, and the intent rather than the strict letter of the act will control.
Woods v. Littleton, 554 S.W.2d 662, 665 (Tex.1977) (quoting City of Mason v. West Tex. Utils. Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951)). In light of the purposes underlying the Whistleblower Act, the appellate courts’ various interpretations all effectuate the goals of the Act. We hold that the statute is not void for vagueness.
Finally, the County argues that the statute violates separation of powers because it permits taxation without representation by authorizing unelected jurors to award punitive damages against a local governmental body. In Green, we concluded that this argument was untenable as applied to state agencies because a plaintiff must request a legislative appropriation to collect the awarded damages. Green, 855 S.W.2d at 145. No similar requirement exists for damages awarded against local governments. Plaintiffs are required, however, to present their claims to the commissioners court to receive satisfaction of their judgments.
CONCLUSION
Having overruled all of the County‘s points of error, we affirm the judgment of the trial court.
POWERS, Justice, concurring.
I disagree only with the majority‘s holding that the venue provision of the Whistleblower Act is not jurisdictional.
I believe there is no dispute that the Whistleblower Act creates a cause of action unknown to common law. The features of the cause of action are as follows: (1) various governmental entities are forbidden to suspend or terminate the employment of a public employee, or discriminate against him or her, when the employee “in good faith reports a violation of law to an appropriate law enforcement authority“; (2) should the governmental entity violate the prohibition, the employee “is entitled to sue for” various forms of relief specified in the Act, some of which are quite unknown at common law, provided he or she has first exhausted any grievance or appeal procedures available within the governmental entity; (3) provided further that the employee must bring the suit within ninety days from the date of the wrongful act or its discovery by the employee; and (4) venue for the suit is prescribed in the following terms:
A public employee may sue under this chapter in a district court of the county in which the employee resides or in a district court of Travis County.
The most recent supreme court decision discussing the Mingus doctrine is apparently Grounds v. Tolar, 707 S.W.2d 889 (Tex.1986). In that opinion, the court held jurisdictional the venue specified by the legislature in suits brought under the Term Contract Non-Renewal Act,
Grounds held jurisdictional the Travis County venue specified in section 21.207(b) of the Texas Education Code. Citing Mingus, the court in Grounds declared as follows:
When a cause of action is derived from a statute, the statutory provisions are mandatory and exclusive and must be complied with in all respects or the action is not maintainable, for lack of jurisdiction.
Grounds, 707 S.W.2d at 891 (emphasis added). Concerning the permissive “may” contained in the venue provision (“Either party may appeal the Commissioner‘s decision to a district court in Travis County“), the court declared it meant that the decision to seek judicial review was optional “but the place of trial is jurisdictional.” Grounds, 707 S.W.2d at 892. As authority for this proposition, the court looked to the following passages in Mingus:
Having in mind the general rule that workmen‘s compensation acts are to be liberally construed to effectuate their beneficial purpose, there can be no doubt that, when the legislature specified the county in which a suit to vacate an award should be filed, the specification was exclusive and intended to be jurisdictional.
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Besides, in special proceedings not within the common-law jurisdiction, the court‘s statutory designation of the venue is mandatory and jurisdictional.
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[W]here a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive, and where it confers jurisdiction upon a particular court, that jurisdiction is exclusive.
Mingus, 285 S.W. at 1087-88 (emphasis added).
In my view, the Mingus doctrine applies to the Whistleblower Act, which creates a right and cause of action that did not exist at common law, prescribes remedies for their enforcement, and specifies the venue for such actions.
Brown v. Owens, 674 S.W.2d 748 (Tex. 1984) is inapposite. The causes of action
Instead, the subject of the supreme court‘s opinion in Brown was a different kind of statute entirely-a statute that did not create a cause of action and remedy while also prescribing a venue for such cause of action. The statute discussed in Brown was, instead, the Texas Tort Claims Act. Act of May 22, 1969, 61st Leg., R.S., ch. 292, 1969 Tex.Gen. Laws 874 (amended 1973, 1983) (current version at
The Texas Tort Claims Act removed the bar of sovereign immunity from almost all causes of action under certain conditions and limitations, when these actions were brought against the State of Texas. In other words, the Texas Tort Claims Act did not create any cause of action; it simply removed the bar against existing causes of action. The causes of action affected by the Tort Claims Act exist outside and independently of that act. There is little wonder then that the Brown opinion omits to mention Mingus or any of the other decisions applying the Mingus doctrine.
James Raymond BLOUNT, Sr., Individually and on Behalf of the Estate Of James Raymond BLOUNT, Jr., and Lisa McCown, As Next Friend to Samantha McCown, Appellants, v. BORDENS, INC., Kenneth Fred Vessey, and W.C. Martin, Appellees.
No. 01-93-00271-CV.
Court of Appeals of Texas, Houston (1st Dist.).
Nov. 3, 1994.
Rehearing Overruled March 2, 1995.