Bexar County and the Bexar County Sheriff's Department v. Kenneth Steward--Appeal from 73rd Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-03-00580-CV
COUNTY OF BEXAR and Bexar County Sheriff's Department,
Appellants
v.
Kenneth STEWARD,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-10899
Honorable Martha Tanner, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 12, 2004

Although the majority opinion appears to concede that Steward's personal grievance reported a violation of the law, the majority holds that the personal grievance was not made to an appropriate law enforcement authority, distinguishing the Austin court's decision in Robertson County v. Wymola, 17 S.W.3d 334 (Tex. App.--Austin 2000, pet. denied). I respectfully dissent.

The Texas Whistleblower Act requires that the report must be made to an appropriate law enforcement authority. Tex. Gov't Code Ann. 554.002(a) (Vernon Supp. 2004). Section 554.002(b) of the Act provides that a report is made to an appropriate law enforcement authority if the authority is part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law. Tex. Gov't Code Ann. 554.002(b) (Vernon Supp. 2004). Under this definition, as noted by the Austin court, we must look to the entity that received the report rather than the specific individual to whom the report was made. Wymola, 17 S.W.3d at 340-41. As the Austin court further noted, the sheriff's department is charged with investigating and enforcing the laws of the State. Id. at 341. Since Lt. White is an officer within the sheriff's department, it follows that Steward made a report to an appropriate law enforcement authority when he filed his personal grievance with White.

The majority distinguishes Wymola, concluding that Steward did not make a good faith report because he knew the proper method for reporting violations of the law and Steward was only seeking relief from White as his supervisor, not as a law enforcement authority. I disagree with this distinction. Typically, internal procedures require employees to follow a chain of command and report perceived problems to their direct supervisors. I am certain that the sheriff's department has such a chain-of command-type policy. Accordingly, in filing the personal grievance with White, Steward acted in good faith by filing the report with an appropriate law enforcement authority while still complying with the internal chain of command. Because the sheriff's department is an appropriate law enforcement authority and Steward acted in good faith in filing the personal grievance with White, I would hold that Steward has stated a cause of action under the Texas Whistleblower Act. Because the majority holds to the contrary, I respectfully dissent.

Alma L. L pez, Chief Justice