Date: 08-10-2017

Case Style: City of Abilene v. Chad Carter

Case Number: 11-15-00121-CV

Judge: Bailey

Court: Texas Court of Appeals, Elventh District on appeal from the 350th District Court, Taylor County

Plaintiff's Attorney: Amy Gibson and David Wiley

Defendant's Attorney: T. Daniel Santee, City Attorney, Stanley E. Smith, Assistant and Kelley K. Messer, Assistant

Description: n this interlocutory appeal, the City of Abilene appeals the trial court’s denial
of its plea to the jurisdiction to Chad Carter’s suit against the City. Carter brought
suit under the Texas Whistleblower Act. In its first issue, the City asserts that the
trial court erred by denying its plea to the jurisdiction. The City contends in its
second issue that the trial court erred in refusing to rule on its evidentiary objections.
We affirm.
Background Facts
Carter was employed by the City of Abilene as an engineer until his
termination. Shortly thereafter, he filed suit against the City under the Texas
Whistleblower Act. See TEX. GOV’T CODE ANN. § 554.002(a) (West 2012). Among
other things, Carter alleged in his original petition that the Texas Engineering
Practice Act1 requires cities to have a licensed engineer perform certain public works
projects and that the City “chose not to involve a licensed engineer as and when
legally required to do so and chose to engage in the unlicensed practice of
engineering” in violation of the Texas Engineering Practice Act and the City’s own
ordinances. He additionally pleaded that he initially reported these alleged
violations internally to city officials and that he subsequently reported the violations
to the Texas Board of Professional Engineers. Carter alleged that he was terminated
within ninety days after he notified the Board of the alleged violations. See id.
§ 554.004(a) (If adverse personnel action occurs against a public employee not later
than the ninetieth day after the date on which the employee reported a violation of
law, there is a rebuttable presumption that the adverse personnel action occurred
because the employee made the report.).
The City responded to Carter’s original petition by filing a plea to the
jurisdiction. The City asserted in the plea that Carter failed to adequately plead that
he made a report to an appropriate law enforcement agency as required by the
Whistleblower Act. See id. § 554.002(a). The City additionally asserted that Carter
failed to initiate the City’s grievance procedures prior to filing suit. See id.
§ 554.006. We note at the outset that the City is no longer asserting that Carter
should have initiated grievance proceedings as a jurisdictional prerequisite under the
Act. The City subsequently filed three supplemental pleas to the jurisdiction. In its
1
See generally TEX. OCC. CODE ANN. §§ 1001.001–.604 (West 2012 and Supp. 2016).
2
initial supplemental plea, the City did not allege any additional jurisdictional
grounds. Instead, the City attached an affidavit and some discovery responses in
support of its grievance ground. As set forth below, the City later filed two
additional supplemental pleas to the jurisdiction.
Carter filed an amended petition wherein he expanded upon his original
allegations under the Whistleblower Act. This amended pleading is the live pleading
assessed by the trial court to determine the City’s plea to the jurisdiction. Carter
asserted in the amended pleading that the City is required to comply with the Texas
Engineering Practice Act, the rules adopted by the Board under the Texas
Engineering Practice Act, and city ordinances concerning engineering. Carter
provided citations in his amended petition for these laws, rules, and ordinances. He
alleged that the Texas Engineering Practice Act prohibits the unlicensed practice of
engineering and that it prohibits cities from constructing any public work involving
engineering without the participation of an engineer. He cited Sections 1001.301(a)
and 1001.407 of the Texas Occupations Code in support of this allegation.
Carter pleaded that he made three reports of law violations by the City: a
report to the city attorney, a report to the city manager, and a written report to the
Texas Board of Professional Engineers. Carter asserted that he reported the
unauthorized practice of engineering and violation of ordinances concerning street
work to the city attorney and city manager. With respect to the report to the Board,
Carter pleaded that he reported “the unlicensed practice of engineering, violations
of the Act including construction of public works, and violations of the [local]
Ordinances concerning street work.” Carter pleaded that the Board was an
appropriate law enforcement authority with respect to violations of the Texas
Engineering Practice Act and the Board’s rules and that the city attorney and the city
manager were also both appropriate law enforcement authorities with respect to
violations of the Texas Engineering Practice Act and violations of city ordinances.
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Carter attached five exhibits to his amended petition. He referenced these
exhibits in his amended petition by footnotes that stated, “See attached Exhibit ___,”
after sentences that summarized the matters addressed in the exhibits. Exhibits A
and B were letters addressed to Carter from an investigator with the Board. Exhibit
A acknowledged receipt of Carter’s written report to the Board. It additionally
advised that the Board would be “initiating a preliminary inquiry to determine
whether the provisions of the Texas Engineering Practice Act and Board Rules are
being complied with.” Exhibit B advised Carter that, “[b]ased on the information
you provided and our inquiry of the above matter,” the City had entered into an
agreement with the Board “that the City of Abilene will not violate any provisions
of the Texas Engineering Practice Act or Board Rules on any and all future activities
within their control where engineering services are required.” Exhibits C and D
were copies of information from the City’s website explaining the roles of the city
attorney and the city manager. Exhibit E consisted of documents relevant to the
City’s grievance ground.
The City filed its second supplemental plea to the jurisdiction in response to
Carter’s amended petition. In the second supplemental plea, the City objected to
Carter’s five exhibits on the basis that they were hearsay and not properly
authenticated. The City subsequently filed its third supplemental plea to the
jurisdiction in which it objected to evidentiary items contained within an appendix
that Carter filed in response to the City’s plea to the jurisdiction. Finally, the City
filed a separate set of written objections to excerpts of statutes, rules, and local
ordinances attached to Carter’s written response to the plea to the jurisdiction.
The trial court initially conducted a hearing on the City’s plea to the
jurisdiction on December 17, 2014. After receiving the parties’ announcements and
arguments concerning the City’s evidentiary objections, the trial court announced
that it would continue the proceedings in order for the trial court and the parties to
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better evaluate the evidentiary objections. The trial court resumed the hearing on
the City’s plea to the jurisdiction on April 2, 2015. The trial court did not hear or
admit any evidence from the parties at the subsequent hearing. Instead, the trial
court only received arguments from counsel on the plea to the jurisdiction. The trial
court took all matters under advisement at the end of the hearing. The trial court
subsequently entered a written order denying the City’s plea to the jurisdiction.
Analysis
“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat
a cause of action without regard to whether the claims asserted have merit.” Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the
trial court’s subject-matter jurisdiction over a pleaded cause of action. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Subject-matter
jurisdiction is a question of law. Id. at 226. Therefore, we apply a de novo standard
of review to a trial court’s ruling on a plea to the jurisdiction. Id.
“Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from lawsuits and liability for money
damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.
2008). Sovereign immunity shields the state from suit unless it expressly consents
to being sued. See Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
Governmental immunity affords similar protection to subdivisions of the state,
including cities. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374
(Tex. 2006). Sovereign and governmental immunity in Texas embodies two
concepts: immunity from liability and immunity from suit. City of Dallas v. Albert,
354 S.W.3d 368, 373 (Tex. 2011). Immunity from liability protects governmental
entities from judgments, while immunity from suit completely bars actions against
those entities unless the legislature expressly consents to suit. Reata Constr. Corp.,
197 S.W.3d at 374. Immunity from suit deprives the courts of subject-matter
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jurisdiction and thus completely bars the plaintiff’s claim. Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003).
Governmental immunity is properly asserted in a plea to the jurisdiction. See
Miranda, 133 S.W.3d at 225–26. A plea to the jurisdiction can take two forms: (1) a
challenge to the plaintiff’s pleadings regarding his allegation of jurisdictional facts
or (2) an evidentiary challenge to the existence of jurisdictional facts. Id. at 226–27;
see Garcia, 372 S.W.3d at 635. While the City initially raised an evidentiary
challenge to Carter’s compliance with grievance procedures, it is now only
challenging the sufficiency of Carter’s pleadings.
A plaintiff bears the burden of alleging facts that affirmatively demonstrate
the trial court’s jurisdiction. Miranda, 133 S.W.3d at 226. “When a plea to the
jurisdiction challenges the pleadings, we determine if the pleader has alleged facts
that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Id. We
must accept as true all factual allegations in the petition, construe the pleadings
liberally, and look to the pleader’s intent. Id. at 226–27.2
The City asserts in it its first issue that the trial court erred in denying its plea
to the jurisdiction because Carter failed to make a good faith report of a violation of
law to an appropriate law enforcement authority. Section 554.0035 of the Texas
Government Code waives sovereign immunity when a public employee alleges a
violation of the Whistleblower Act. GOV’T § 554.0035; see Univ. of Houston v.
Barth, 403 S.W.3d 851, 854 (Tex. 2013). The Whistleblower Act protects public
employees who in good faith report violations of law to an appropriate law
enforcement authority. GOV’T § 554.002(a); see Tex. Dep’t of Human Servs. v.
Okoli, 440 S.W.3d 611, 612 (Tex. 2014). To satisfy this requirement, a plaintiff
2
Miranda also sets the standard of review when the governmental unit challenges the existence of
jurisdictional facts and the parties submit evidence relevant to a jurisdictional challenge. 133 S.W.3d at
227. The standard of reviews mirrors that of a traditional motion for summary judgment under Texas Rule
of Civil Procedure 166a(c). Id. at 228; see Garcia, 372 S.W.3d at 635.
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seeking the Act’s protection must prove that the report was made to an appropriate
law enforcement authority or that the employee had a good faith belief that it was.
Id. at 613–14 (citing Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex.
2002)). “[A] report is made to an appropriate law enforcement authority if the
authority is a 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.” GOV’T § 554.002(b).
The City contends that Carter failed to plead the specific alleged violations of
law that he reported and that, because of this omission, we cannot ascertain if the
Texas Board of Professional Engineers, the city attorney, and the city manager are
appropriate law enforcement authorities under the Whistleblower Act. We agree
with the City that the particular law that was reportedly violated is critical to a
determination of whether the authority is an appropriate law enforcement authority.
McMillen v. Tex. Health & Human Servs. Comm’n, 485 S.W.3d 427, 429 (Tex.
2016) (citing Needham, 82 S.W.3d at 321). However, we disagree with the City’s
contention that Carter did not adequately plead the legal violations that he reported
to the Texas Board of Professional Engineers.
As noted previously, we must accept as true all factual allegations in Carter’s
petition, construe the pleadings liberally, and look to his intent in assessing the
adequacy of his pleading of jurisdictional facts. Miranda, 133 S.W.3d at 226–27.
Carter pleaded that the Texas Engineering Practice Act prohibits the unlicensed
practice of engineering and that the Act prohibits cities from constructing any public
works involving engineering in which the public health, welfare, or safety is
involved unless an engineer is involved in the planning and construction. He
supported these allegations with citations to Sections 1001.301(a) and 1001.407 of
the Occupations Code. Carter further alleged that he submitted a written report in
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excess of 100 pages to the Texas Board of Professional Engineers detailing among
other things his allegations pertaining to the unlicensed practice of engineering by
the City and violations of the Texas Engineering Practice Act pertaining to the
construction of public works.
Carter further alleged that the Texas Board of Professional Engineers is an
appropriate law enforcement authority with respect to a violation of the Texas
Engineering Practice Act and the Rules adopted by the Board under the Act. He
supported these allegations by pleading the statutory authorization and purpose of
the Texas Board of Professional Engineers. See OCC. § 1001.101 (the Board is
appointed by the governor with advice and consent of the senate); id. § 1001.201(a)
(the Board administers and enforces the Texas Engineering Practice Act); id. §
1001.202 (the Board may adopt and enforce rules necessary to regulate the practice
of engineering); see also 22 TEX. ADMIN. CODE § 131.1(a) (2016) (Tex. Bd. of Prof’l
Eng’rs, Organization and Administration) (“The board is statutorily empowered to
regulate the practice of engineering in Texas.”). Carter additionally pleaded that the
Board responded to his report by initiating an inquiry and subsequently entering into
a compliance agreement with the City.
Carter pleaded that he reported to the Texas Board of Professional Engineers
that the City violated provisions of the Texas Engineering Practice Act and the rules
adopted by the Board. He additionally pleaded that the Board initiated an inquiry
based upon his report and that the Board and the City entered into a voluntary
compliance agreement as a result of his report. Finally, he pleaded that he was
terminated as a result of the report that he made to the Board. The Whistleblower
Act’s definition of “law” includes a state statute and rules adopted under a statute or
ordinance. See GOV’T § 554.001(1). The enabling statutes for the Texas Board of
Professional Engineers cited by Carter in his pleadings establish that the Board is an
appropriate law enforcement authority authorized to “regulate under or enforce”
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violations of the Texas Engineering Practice Act and Board rules enacted under the
Act. See GOV’T § 554.002(b)(1). Accordingly, we overrule the City’s first issue. In
doing so, we note that we have not reached the merits of Carter’s claims, and we
express no opinion in that regard. Furthermore, we do not reach the contentions
concerning whether the reports to the city attorney and the city manager constituted
reports to appropriate law enforcement authorities.
The City asserts in its second issue that the trial court erred by failing to rule
on and sustain its evidentiary objections to Carter’s evidence. As stated, this issue
appears misplaced for two reasons: (1) on appeal, the City is only challenging the
sufficiency of Carter’s pleadings and (2) the trial court did not receive any evidence
at the hearing on the plea to the jurisdiction. However, the City has clarified that it
is appealing the trial court’s possible consideration of two matters: (1) the exhibits
attached to Carter’s amended petition and (2) excerpts of the Texas Engineering
Practice Act and the rules promulgated by the Texas Board of Professional Engineers
and excerpts of city ordinances.
We review a trial court’s evidentiary rulings for abuse of discretion. See
Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). An
appellate court must uphold the trial court’s evidentiary ruling if there is any
legitimate basis for the ruling. Id. Unless the trial court’s erroneous evidentiary
ruling probably caused the rendition of an improper judgment, we will not reverse
the ruling. Id.
We will first address the City’s objections to the excerpts of the statutes, rules,
and ordinances. The City objected to these materials on the basis that they were not
timely filed in accordance with the trial court’s scheduling order. The trial court
overruled the City’s objection at the hearing on the basis that the excerpts were
“public record” and would be considered like any other statute in assessing the City’s
jurisdictional plea. Thus, the trial court did not receive the excerpts as evidence. We
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conclude that the trial court did not abuse its discretion in making this ruling.
Furthermore, we have not utilized these excerpts of the law in our de novo review
of the sufficiency of Carter’s pleadings.
The City objected to the five exhibits attached to Carter’s amended pleading
on the basis that they were hearsay and not properly authenticated. The City
additionally asserted that the exhibits could not be considered in assessing the
sufficiency of Carter’s pleadings because they were not incorporated by reference in
his amended pleading. We restrict our consideration to the City’s first two exhibits
because they are the only matters that are relevant to our disposition of the first issue.
These two exhibits are the letters from the Texas Board of Professional Engineers
referenced above.
As correctly noted by the City, simply attaching a document to a pleading
does not make the document admissible as evidence, dispense with proper
foundational evidentiary requirements, or relieve a litigant of complying with other
admissibility requirements. See Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722,
725 (Tex. App.—San Antonio 2004, no pet.). However, these exhibits were not
admitted as evidence before the trial court. Accordingly, we conclude that the trial
court did err by not considering the City’s evidentiary objections to the exhibits.
Documents constituting all or part of the claim sued on may be made a part of
the pleadings by being attached and referred to in the pleading. TEX. R. CIV. P. 59;
see City of Celina v. Blair, 171 S.W.3d 608, 612 n.5 (Tex. App.—Dallas 2005, no
pet.). Rule 59 provides that a document attached and referred to in a pleading shall
be deemed a part of the pleading for all purposes. See Blair, 171 S.W.3d at 612 n.5.
The City contends that documents attached to pleadings must be formally
incorporated by reference in order for them to be considered as part of the pleadings
under Rule 59. However, the City has not cited any authority that Rule 59 requires
specific language formally incorporating attached documents as a part of the
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pleadings. To the contrary, courts have held that the attachment of documents to
pleadings and a simple reference to them in the pleadings makes them a part of the
pleadings for all purposes under Rule 59. See HSBC Bank USA, N.A. v. Watson, 377
S.W.3d 766, 775–76 (Tex. App.—Dallas 2012, pet. dism’d); Quality Hardwoods,
Inc. v. Midwest Hardwood Corp., No. 2-05-311-CV, 2007 WL 1879797, at *2 n.5
(Tex. App.—Fort Worth June 28, 2007, no pet.) (mem. op.); Blair, 171 S.W.3d at
612 n.5. Thus, exhibits attached to and referred to in pleadings may be considered
when determining whether the plaintiff has stated a cause of action. See Hillson
Steel Products, Inc. v. Wirth Ltd., 538 S.W.2d 162, 166 (Tex. Civ. App.—Houston
[1st Dist.] 1976, no writ).
Carter contends that the allegations that he pleaded in the amended petition
itself are sufficient to allege jurisdictional facts without reliance on the exhibits
attached to it. We agree. Carter pleaded:
In this case, the Board launched an inquiry as a result of the
report from Mr. Carter of violations of law. [See attached Exhibit A.]
After giving the City an opportunity to respond, the Board ultimately
entered an agreement of voluntary compliance with the City to resolve
the violations of law that were included in the report. [See attached
Exhibit B.]
(Text of footnotes inserted in brackets). Thus, Carter pleaded the same general
information as contained in the two exhibits. As noted previously, the applicable
standard of review requires these allegations to be accepted as true. Miranda, 133
S.W.3d at 226–27. Accordingly, any error by the trial court concerning these
exhibits could not have caused the rendition of an improper verdict. See Malone,
972 S.W.2d at 43. Moreover, we disagree with the City’s contention that Carter did
not sufficiently reference the exhibits in his pleadings in order for them to be
considered a part of his pleadings under Rule 59. We overrule the City’s second
issue.

Outcome: We affirm the order of the trial court denying the City’s plea to the
jurisdiction.

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