Texas Supreme Court Narrows Scope of State’s Whistleblower Statute

June 20, 2002

The Texas Supreme Court recently provided government employers some good news concerning retaliation claims made by employees under The Texas Whistleblower Statute, which applies solely to public sector employees. The statute prohibits government employers from taking adverse personnel action s (i.e. demotion, suspension, termination, etc.) against employees in retaliation for reporting legally inappropriate government activities.

The key issue in this landmark decision focused on the type of government entity that constitutes an “appropriate law enforcement agency” for purposes of receiving an employee's whistleblower report. Section 554.002(b) of the whistleblower statute defines an "appropriate law enforcement agency" as one that is authorized to regulate under and enforce “the law alleged to be violated in the report” or to investigate or prosecute "a violation of criminal law." Public employees have, over the last several years, argued for an increasingly broad interpretation of this definition, contending it encompasses public employers who possess the power to discipline employees for allegedly violating a law.

The Texas Supreme Court expressly rejected this argument, holding that the statutory definition does not include an employer’s internal power to discipline employees for illegal misconduct. The Court also held it is not enough that a government entity has general authority to regulate, enforce, investigate or prosecute. Rather, the agency receiving the report must possess the power and authority to regulate under, enforce, investigate, or prosecute the specific law allegedly violated in order to qualify as an “appropriate law enforcement agency”.

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