No.

_____

In the
Supreme Court of Texas


OFFICE OF THE ATTORNEY GENERAL,
Petitioner,

v.

GINGER WEATHERSPOON,
Respondent.


On Petition for Review from the
Fifth Cort of A!!e"#$, %"##"$, Te&"$


PETITION FOR REVIEW


GREG A''OTT
Attorne( Gener"# of Te&"$

%ANIEL T. HO%GE
Fir$t A$$i$t"nt Attorne(
Gener"#

)ONATHAN F. *ITCHELL
So#i+itor Gener"#
'ETH ,L-S*ANN
A$$i$t"nt So#i+itor Gener"#
St"te '"r No. ./012345

OFFICE OF THE ATTORNEY GENERAL
P.O. 'o& 4.6/5 7*C 0638
A$tin, Te&"$ 95944:.6/5
Te#.; 764.8 312:434/
F"&; 764.8 /9/:.239
'eth.,#$m"nn<te&"$"ttorne(=ener"#.=ov

CO-NSEL FOR THE OFFICE
OF THE ATTORNEY GENERAL


FILED
14-0582
7/28/2014 5:00:00 PM
tex-1969323
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
i

IDENTITY OF PARTIES AND COUNSEL
Parties Counsel
Petitioner
Offi+e of the Attorne( Gener"#
of Te&"$

Texas Supreme Court:
'eth ,#$m"nn
>eth.?#$m"nn<te&"$"ttorne(=ener"#.=ov

Trial and Appellate:
Wi##i"m T. %e"ne
>i##.@e"ne<te&"$"ttorne(=ener"#.=ov
Am"n@" Co+hr"n:*+C"##
"m"n@".+o+hr"n:m++"##<te&"$"ttorne(=ener"#.=ov

OFFICE OF THE ATTORNEY GENERAL
P.O. 'o& 4.6/5 7*C 0638
A$tin, Te&"$ 95944:.6/5
Te#.; 764.8 312:434/
F"&; 764.8 /9/:.239
Respondent
Gin=er We"ther$!oon

Steven '. Thor!e
$teve<thor!eh"t+her.+om
C"r#" S. H"t+her
+"r#"<thor!eh"t+her.+om

THORPE, HATCHER, A WASHINGTON, LLP
..4/ *"in Street
%"##"$, Te&"$ 96.04
Te#; 7.4/8 323:6600
F"&; 7.4/8 323:3020


ii

TABLE OF CONTENTS

I@entit( of P"rtie$ "n@ Con$e# ............................................................................... i
In@e& of Athoritie$ .............................................................................................. iii
St"tement of the C"$e .............................................................................................v
St"tement of )ri$@i+tion ....................................................................................... vi
I$$e Pre$ente@ ..................................................................................................... vii
St"tement of F"+t$ ................................................................................................. .
Smm"r( of the Ar=ment ...................................................................................... 6
Ar=ment............................................................................................................... 2
I. Em!#o(in= Some In@ivi@"#$ Who C"n Inve$ti="te or Pro$e+te
Crime %oe$ Not *"?e A## Em!#o(ee$ A!!ro!ri"te L"w:
Enfor+ement Athoritie$. ................................................................... 9
II. OAGB$ Re!ortin= Po#i+( On#( Confirm$ Th"t We"ther$!oonB$
S!ervi$or$ Are Not A!!ro!ri"te L"w:Enfor+ement
Athoritie$. ....................................................................................... 40
III. Thi$ C"$e Cont"in$ the S"me I$$e$ Th"t the Cort I$
Con$i@erin= in Okoli. ........................................................................ 4/
Pr"(er ................................................................................................................... 42
Certifi+"te of Servi+e............................................................................................. 49
Certifi+"te of Com!#i"n+e ..................................................................................... 49

iii

INDEX OF AUTHORITIES

Cases
Office of the Attorney Gen. of Tex. v. Rodriguez,
/.0 S.W.1@ 33 7Te&. A!!.CE# P"$o .04., no !et.8 ............................... 4., 41
Office of the Attorney Gen. v. Weatherspoon,
No. 06:41:0021.:CD, .04/ WL .905963
7Te&. A!!.C%"##"$, )ne 42, .04/, !et. fi#e@8 ...................................... passim
tate v. !ueck,
.30 S.W.1@ 592 7Te&. .0038 ........................................................... vi, 9, 3, 41
Tex. A " # $niv.%&ingsville v. #oreno'
133 S.W.1@ 4.5 7Te&. .0418 7!er +ri"m8 .................................................... 44
Tex. (ep)t of *uman ervs. v. Okoli,
149 S.W.1@ 500 7Te&. A!!.CHo$ton E4$t %i$t.F .040,
!et. fi#e@8 ............................................................................................... 4/, 46
Tex. (ep+t of Transp. v. ,eedham,
5. S.W.1@ 14/ 7Te&. .00.8 ........................................................ vi, 9, 3, 44, 41
$niv. of *ouston v. -arth,
/01 S.W.1@ 564 7Te&. .0418 7!er +ri"m8 ...................................... vi, 3, 40, 44
$niv. of Tex. .. #ed. /tr. v. Gentilello,
135 S.W.1@ 250 7Te&. .0418 ............................................................ 9:5, 44, 41
0ela v. /ity of *ouston,
452 S.W.1@ /3 7Te&. A!!.CHo$ton E4$t %i$t.F .006, no !et.8 .................. 4.
Wichita /nty. v. *art,
349 S.W..@ 993 7Te&. 43328 .......................................................................... 9



iv

Statutes
45 -.S.C. G 42.. ..................................................................................................... 1
TEH. GODBT CO%E G ...0047.8 .............................................................................. vi
TEH. GODBT CO%E +h. 66/ ................................................................................... v, /
TEH. GOBDT CO%E G 66/.00. ................................................................................. 3
TEH. GODBT CO%E G 66/.00.7"8 ............................................................................. 2
TEH. GODBT CO%E G 66/.00.7>8 ......................................................................... 2, 3
TEH. GODBT CO%E G 66/.00.7>8748 ........................................................................ 3
TEH. PENAL CO%E G 13.0. ...................................................................................... 1
TEH. PENAL CO%E G 13.01 ....................................................................................... 1

Other Authorities
The Governor of the St"te of Te&., E&e+tive Or@er RP 12,
)#( 4., .00/, .3 Te&. Re=. 9.13:/0 ........................................................... 41
v

STATEMENT OF THE CASE
,ature of the /ase; Gin=er We"ther$!oon >ro=ht $it n@er the
Te&"$ Whi$t#e>#ower A+t, TEH. GODBT CO%E
+h. 66/, "="in$t her former em!#o(er the Offi+e
of the Attorne( Gener"# 7OAG8. CR.5:42.

Trial /ourt; The Honor">#e *"rtin ). Hoffm"n
25th )@i+i"# %i$tri+t Cort
%"##"$ Cont(, Te&"$

Trial /ourt)s (isposition; The tri"# +ort @enie@ OAGB$ !#e" to the
Iri$@i+tion. CR.460:64.

Parties in the /ourt of Appeals; Appellant; Offi+e of the Attorne( Gener"#
Appellee; Gin=er We"ther$!oon

/ourt of Appeals; Fifth Cort of A!!e"#$, %"##"$, Te&"$

/ourt of Appeals)s (isposition; The +ort of "!!e"#$ "ffirme@, ho#@in= th"t
We"ther$!oonB$ intern"# re!ort$ to her
$!ervi$or$ $"ti$fie@ the reJirement$ of the
Whi$t#e>#ower A+t. Office of the Attorney
General v. Weatherspoon, No. 06:41:0021.:CD,
.04/ WL .905963 7Te&. A!!.C%"##"$, )ne 42,
.04/, !et. fi#e@8 7Ev"n$, )., Ioine@ >( OBNei##
"n@ L"n=:*ier$, )).8 7T"> '8.



vi

STATEMENT OF URISDICTION
The Cort h"$ Iri$@i+tion >e+"$e thi$ i$ " +"$e in whi+h Kone of the +ort$
of "!!e"#$ ho#@$ @ifferent#( from " !rior @e+i$ion . . . of the $!reme +ort on "
Je$tion of #"w m"teri"# to " @e+i$ion of the +"$e.L TEH. GODBT CO%E G ...0047.8.
The Fifth Cort he#@ th"t We"ther$!oonB$ re!ort of +rimin"# +on@+t to her
$!ervi$or$ in OAG w"$ " re!ort to "n K"!!ro!ri"te #"w:enfor+ement "thorit(L
n@er the Whi$t#e>#ower A+t >e+"$e 748 other em!#o(ee$ of OAG were
"!!ro!ri"te #"w:enfor+ement "thoritie$M "n@ 7.8 "n intern"# !o#i+( $t"te@ th"t her
$!ervi$or$ h"@ " re$!on$i>i#it( to refer the m"tter to OAGB$ Offi+e of S!e+i"#
Inve$ti="tion$. Weatherspoon, .04/ WL .905963, "t N/, N2. The fir$t !oint i$
+ontr"r( to thi$ CortB$ ho#@in=$ in $niversity of *ouston v. -arth, /01 S.W.1@ 564,
569:65 7Te&. .0418 7!er +ri"m8, "n@ tate v. !ueck, .30 S.W.1@ 592, 556:52 7Te&.
.0038. The $e+on@ i$ +ontr"r( to -arth, /01 S.W.1@ "t 569:65, "n@ Texas
(epartment of Transportation v. ,eedham, 5. S.W.1@ 14/, 1.4 7Te&. .00.8. The
i$$e$ "re "#$o $imi#"r to tho$e r"i$e@ in Texas (epartment of *uman ervices v.
Okoli, No. 40:0629, +rrent#( !en@in= >efore the Cort.

vii

ISSUE PRESENTED
We"ther$!oon re!orte@ " !otenti"# +rimin"#:#"w vio#"tion intern"##( to her
$!ervi$or$. She now +#"im$ th"t her $!ervi$or$, who @o not h"ve "thorit( to
inve$ti="te or !ro$e+te +rime, "re "!!ro!ri"te #"w:enfor+ement "thoritie$ for two
re"$on$. Fir$t, her $!ervi$or$ wor?e@ for OAG, "n@ other em!#o(ee$ of OAG
+o#@ inve$ti="te "n@ !ro$e+te +rime. Se+on@, "n intern"# !o#i+( m"@e her
$!ervi$or$ re$!on$i>#e for referrin= re!ort$ of +rimin"# +on@+t to OAGB$ Offi+e
of S!e+i"# Inve$ti="tion$.

%i@ the tri"# +ort err in @en(in= OAGB$ !#e" to the Iri$@i+tionO

No. _______
In the
Supreme Court of Texas


OFFICE OF THE ATTORNEY GENERAL,
Petitioner,

v.

GINGER WEATHERSPOON,
Respondent.


On Petition for Review from the
Fifth Cort of A!!e"#$, %"##"$, Te&"$


PETITION FOR REVIEW


Thi$ +"$e !re$ent$ the $"me i$$e$ "$ tho$e the Cort i$ +rrent#(
+on$i@erin= in Texas (epartment of *uman ervices v. Okoli, No. 40:0629. An@
tho$e i$$e$ wi## +ontine to "ri$e "$ +ort$ $ee? to "!!#( the Whi$t#e>#ower A+t to
#"r=e $t"te entitie$ with m#ti!#e $e+tion$, @ivi$ion$, "n@ !o#i+ie$. Gin=er
We"ther$!oon @i@ not te## "n( in@ivi@"# who +o#@ inve$ti="te or !ro$e+te +rime
">ot the "##e=e@ +rimin"# +on@+t th"t $he o>$erve@. 't >e+"$e 748 OAG h"@ "n
Offi+e of S!e+i"# Inve$ti="tion$ "t the time, "n@ 7.8 "n intern"# !o#i+( m"@e it the
Kre$!on$i>i#it(L of @ivi$ion +hief$ to refer m"tter$ to th"t offi+e, the +ort of
"!!e"#$ +on+#@e@ th"t We"ther$!oonB$ re!ort$ to her $!ervi$or$ were $ffi+ient

.
to invo?e the !rote+tion$ of the Whi$t#e>#ower A+t. 'oth re"$on$ h"ve >een
reIe+te@ >( thi$ Cort. The Cort $ho#@ =r"nt the !etition "n@ @i$mi$$
We"ther$!oonB$ +#"im$ for #"+? of $>Ie+t:m"tter Iri$@i+tion.
STATEMENT OF FACTS
The +ort of "!!e"#$ +orre+t#( $t"te@ the n"tre of the +"$e. Weatherspoon,
.04/ WL .905963, "t N4:N..
We"ther$!oon >e="n her em!#o(ment with OAG in .002 "$ "n A$$i$t"nt
Attorne( Gener"# in the Chi#@ S!!ort %ivi$ion 7CS%8. CR.41.. A++or@in= to
We"ther$!oonB$ "ffi@"vit, in Fe>r"r( .005, $he re!orte@ " +onver$"tion $he h"@
with " @i$tri+t I@=e in %"##"$ to )"me$ )one$, "n OAG $enior re=ion"# "ttorne( in
the CS%. CR.41.. )one$ "n@ "nother CS% "ttorne( then "$?e@ We"ther$!oon to
$i=n "n "ffi@"vit th"t the( h"@ @r"fte@ +on+ernin= her inter"+tion$ with the I@=e.
CR.41.:11. We"ther$!oon w"$ "w"re th"t the "ffi@"vit w"$ =oin= to >e $e@ in "n
effort to re+$e the I@=e in +"$e$ invo#vin= OAG. CR.411. We"ther$!oon
@e+#ine@ to $i=n the "ffi@"vit, $t"tin= th"t it w"$ in"++r"te. CR.411. )one$ then
or@ere@ We"ther$!oon to $i=n the "ffi@"vit. CR.411. We"ther$!oon +ontine@ to
ref$e "n@ re!orte@ )one$B$ +on@+t to P"#" Cro+?ett, her m"n"=in= "ttorne( "t
the time. CR.411:1/.

1
)one$ #"ter or@ere@ We"ther$!oon to "!!e"r "t "n "@mini$tr"tion offi+e to
$i=n the "ffi@"vit. CR.41/. We"ther$!oon "rrive@, >t "="in ref$e@ to $i=n.
CR.41/. At thi$ !oint, We"ther$!oon "##e=e$ th"t )one$ m"@e her w"it in "n
"@I"+ent room "n@ wo#@ not "##ow her to #e"ve. CR.41/. We"ther$!oon >e="n to
re!ort )one$B$ +on@+t to )one$B$ $!ervi$or, >t w"$ interr!te@ >( )one$.
CR.41/. She $"($ th"t $he w"$ "##owe@ to #e"ve "fter !re!"rin= her own t(!e:
written $t"tement. CR.41/.
We"ther$!oon "$$ert$ th"t $he re!orte@ the m"tter to Cro+?ett "="in.
CR.416. We"ther$!oon "#$o +#"im$ th"t $he re!orte@ the m"tter to ,"ren Yon=, "
m"n"=in= "ttorne(, "n@ %e>>ie New#in, " CS% "ttorne( tr"iner. CR.416. She #"ter
to#@ C"ro# C"m!>e##, "n OAG "ttorne( who wor?e@ with the O!en Re+or@$
%ivi$ion. CR.416. We"ther$!oon #tim"te#( $!o?e ">ot the in+i@ent with A#i+i"
,e(, the %ire+tor of Chi#@ S!!ort, "n@ Ch"r#e$ Smith, the %e!t( %ire+tor of
Chi#@ S!!ort. CR.416. A++or@in= to We"ther$!oon, )one$B$ +on@+t in
!re$$rin= her to $i=n " f"#$e "ffi@"vit vio#"te@ Te&"$ Pen"# Co@e G 13.0. 7">$e of
offi+i"# +"!"+it(8, Te&"$ Pen"# Co@e G 13.01 7offi+i"# o!!re$$ion8, "n@ 45 -.S.C.
G 42.. 7$>orn"tion of !erIr(8. CR.416.
Fo##owin= her re!ort$, We"ther$!oon w"$ informe@ >( ,e( th"t Attorne(
Gener"# Gre= A>>ott h"@ "$?e@ ,e( to +"## "n@ !er$on"##( "!o#o=iPe for wh"t h"@

/
o++rre@. CR.416. ,e( "$$re@ We"ther$!oon th"t there wo#@ >e " f##
inve$ti="tion. CR.416. We"ther$!oonB$ ori=in"# !etition note@ th"t two of the
in@ivi@"#$ invo#ve@ were @emote@. CR.3.
We"ther$!oon "$$ert$ th"t $he w"$ ret"#i"te@ "="in$t >e+"$e of her re!ort$
of )one$B$ +on@+t. CR.412. S!e+ifi+"##(, We"ther$!oon +#"im$ th"t Yon=
remove@ her from #i=ht:@t( re$tri+tion$, th"t Yon= intention"##( $et @e"@#ine$
th"t $he ?new We"ther$!oon +o#@ not meet, "n@ th"t OAG #tim"te#( termin"te@
her em!#o(ment. CR.412.
We"ther$!oon >ro=ht $it n@er the Te&"$ Whi$t#e>#ower A+t. TEH.
GODBT CO%E +h. 66/M CR.5:42. OAG fi#e@ " no:evi@en+e motion for $mm"r(
I@=ment, CR..4:.1, "n@ " !#e" to the Iri$@i+tion, CR.95:51. OAG "r=e@ th"t
none of the in@ivi@"#$ to whom We"ther$!oon m"@e her re!ort met the
Whi$t#e>#ower A+tB$ @efinition of K"!!ro!ri"te #"w:enfor+ement "thorit(.L
RR.6:5. In re$!on$e, We"ther$!oon !ointe@ to "n intern"# OAG !o#i+( th"t
reJire@ em!#o(ee$ to re!ort "##e=e@ +rimin"# vio#"tion$ to their @ivi$ion +hief "n@
m"@e the @ivi$ion +hief re$!on$i>#e for referrin= the m"tter to OAGB$ Offi+e of
S!e+i"# Inve$ti="tion$. CR.4/2. The !o#i+( "#$o $t"te@ th"t em!#o(ee$ were not to
re!ort +rimin"# m"tter$ to ot$i@e #"w:enfor+ement "=en+ie$ n#e$$ e&i=ent

6
+ir+m$t"n+e$ e&i$te@.
4
CR.4/2. The tri"# +ort @enie@ the !#e", CR.460:64, "n@
OAG "!!e"#e@, CR.46.:6/.
The Fifth Cort of A!!e"#$ "ffirme@. Weatherspoon, .04/ WL .905963, "t
N2. It$ r#in= re$te@ on two !rin+i!#e$; 748 OAG em!#o(e@ $ome in@ivi@"#$ in it$
Offi+e of S!e+i"# Inve$ti="tion$ who +o#@ inve$ti="te or !ro$e+te +rime, id. "t N/M
"n@ 7.8 the OAG !o#i+( in !#"+e "t the time in$tr+te@ We"ther$!oon to re!ort
+rimin"# "+tivit( to her @ivi$ion +hief who, in trn, h"@ " re$!on$i>i#it( to refer it to
the Offi+e of S!e+i"# Inve$ti="tion$, id. "t N6:N2. -n@er thi$ re"$onin=, the "!!e"#$
+ort +on$tre@ We"ther$!oonB$ re!ort to her $!ervi$or$ "$ $ffi+ient to $t"te "
+#"im n@er the Whi$t#e>#ower A+t. 1d. "t N2.
SUMMARY OF THE AR!UMENT
The Cort $ho#@ =r"nt the !etition not on#( >e+"$e it r"i$e$ i$$e$ $imi#"r
to tho$e in Okoli, >t "#$o >e+"$e the$e i$$e$ "re >on@ to re+r. *"n(
=overnment"# entitie$ h"ve @ifferent @e!"rtment$ with @ifferent fn+tion$.
Em!#o(ee$ $ho#@ not re+eive whi$t#e>#ower !rote+tion n#e$$ the( !er$on"##(
re!ort the vio#"tion of #"w to the @e!"rtment +"!">#e of "+t"##( @oin= $omethin=
">ot it >e(on@ intern"# +om!#i"n+e. Li?ewi$e, intern"# !o#i+ie$ th"t +re"te "

4
We"ther$!oonB$ initi"# "ffi@"vit "n@ re$!on$e to OAGB$ motion "n@ !#e" m"@e no mention of
thi$ !o#i+(. CR../:/., /6:/5. Two "n@ " h"#f (e"r$ #"ter, We"ther$!oon fi#e@ "n "men@e@
re$!on$e th"t in+#@e@ " @i$+$$ion of OAGB$ !o#i+(. CR.405:03, 41.:/2.

2
$tr+tre for re!ortin= mi$+on@+t $ho#@ not @e!tiPe $!ervi$or$ with #"w:
enfor+ement "thorit( when it i$ +#e"r th"t the $!ervi$or$ "re mere#( +on@it$ to
$omeone who i$ ">#e to inve$ti="te or !ro$e+te +rime. The te&t of the
Whi$t#e>#ower A+t m"n@"te$ th"t the re!ort >e m"@e to "n "!!ro!ri"te #"w:
enfor+ement "thorit(, not "n in@ivi@"# who$e on#( ro#e i$ to refer the re!ort to
$omeone e#$e. The$e i$$e$ nee@ re$o#tion. The Cort $ho#@ =r"nt the !etition.
AR!UMENT
The Te&"$ Whi$t#e>#ower A+t !rohi>it$ " $t"te or #o+"# =overnment"# entit(
from termin"tin= "n em!#o(ee Kwho in =oo@ f"ith re!ort$ " vio#"tion of #"w >( the
em!#o(in= =overnment"# entit( or "nother !>#i+ em!#o(ee to "n "!!ro!ri"te #"w
enfor+ement "thorit(.L TEH. GODBT CO%E G 66/.00.7"8. A$ with m"n( of the
+"$e$ th"t h"ve +ome >efore the Cort, thi$ +"$e +on+ern$ the @efinition of
K"!!ro!ri"te #"w:enfor+ement "thorit(L;
" !"rt of " $t"te or #o+"# =overnment"# entit( or of the fe@er"#
=overnment th"t the em!#o(ee in =oo@ f"ith >e#ieve$ i$ "thoriPe@ to;
748 re=#"te n@er or enfor+e the #"w "##e=e@ to >e vio#"te@ in the
re!ortM or
7.8 inve$ti="te or !ro$e+te " vio#"tion of +rimin"# #"w.
1d. G 66/.00.7>8. The =oo@:f"ith reJirement me"n$ th"t the em!#o(ee m$t h"ve
>oth " $>Ie+tive >e#ief "n@ "n o>Ie+tive#( re"$on">#e >e#ief th"t the in@ivi@"#
re+eivin= the re!ort h"$ the ">i#it( to re=#"te, enfor+e, inve$ti="te, or !ro$e+te.

9
,eedham, 5. S.W.1@ "t 1.4M see also Wichita /nty. v. *art, 349 S.W..@ 993, 95/
7Te&. 43328. Re!ortin= to "n "!!ro!ri"te #"w:enfor+ement "thorit( i$ "
Iri$@i+tion"# reJirement n@er the A+t. !ueck, .30 S.W.1@ "t 554.
A$ note@ ">ove, the +ort of "!!e"#$B$ @e+i$ion re$te@ on two #e="# theorie$.
Fir$t, >e+"$e OAG h"@ "n Offi+e of S!e+i"# Inve$ti="tion$ th"t +o#@ inve$ti="te
vio#"tion$ of +rimin"# #"w, We"ther$!oonB$ re!ort$ to her $!ervi$or$ were m"@e to
"!!ro!ri"te #"w:enfor+ement "thoritie$ >e+"$e her $!ervi$or$ were K!"rt ofL
OAG. Weatherspoon, .04/ WL .905963, "t N/. Se+on@, >e+"$e OAG h"@ " !o#i+(
th"t m"@e $!ervi$or$ re$!on$i>#e for referrin= re!ort$ of mi$+on@+t to the Offi+e
of S!e+i"# Inve$ti="tion$, We"ther$!oonB$ re!ort to her $!ervi$or$ w"$ $ffi+ient.
1d. "t N6:N2. 'oth of the$e !ro!o$ition$, however, "re +ontr"@i+te@ >( +"$e$ from
thi$ Cort. The Cort $ho#@ =r"nt the !etition "n@ @i$mi$$ the +"$e for #"+? of
$>Ie+t:m"tter Iri$@i+tion.
I" EMPLOYIN! SOME INDIVIDUALS WHO CAN INVESTI!ATE OR PROSECUTE
CRIME DOES NOT MA#E ALL EMPLOYEES APPROPRIATE LAW$
ENFORCEMENT AUTHORITIES"
We"ther$!oon h"$ no "r=ment th"t the OAG "ttorne($ to whom $he m"@e
her re!ort$ h"ve "n( "thorit( to inve$ti="te or !ro$e+te the +rime$ $he "##e=e$
were +ommitte@. An@ "$ "n "ttorne( in the $"me @ivi$ion, We"ther$!oon wo#@
h"ve >een we## "w"re of the #imit$ of their "thorit(. ee $niv. of Tex. .. #ed. /tr.

5
v. Gentilello, 135 S.W.1@ 250, 251 7Te&. .0418 7$t"tin= th"t the em!#o(eeB$ >e#ief
m$t >e re"$on">#e in #i=ht of the em!#o(eeB$ tr"inin= "n@ e&!erien+e8. The +ort
of "!!e"#$ mi$+on$tre@ the @efinition of "!!ro!ri"te #"w:enfor+ement "thorit( to
$i=nifi+"nt#( en#"r=e it$ $+o!e. The Cort $ho#@ =r"nt the !etition "n@ =ive effe+t
to the #imit$ im!o$e@ >( the Le=i$#"tre.
The +ort of "!!e"#$B$ re"$onin= i$ "$ fo##ow$; CS% i$ K!"rt ofL OAG.
Weatherspoon, .04/ WL .905963, "t N/. OAG, thro=h it$ Offi+e of S!e+i"#
Inve$ti="tion$, +o#@ h"ve inve$ti="te@ "n@ !ro$e+te@ +rimin"#:#"w vio#"tion$. 1d.
Therefore, " re!ort to CS% i$ " re!ort to "n "!!ro!ri"te #"w:enfor+ement
"thorit(. 1d. 't the +ort of "!!e"#$B$ over#( >ro"@ re"$onin= wo#@ tr"n$form
ever( em!#o(ee of OAG into "n "!!ro!ri"te #"w:enfor+ement "thorit(. An@ it i$
not I$t OAG th"t wo#@ >e im!"+te@. An( #"r=e $t"te "=en+( th"t em!#o(e@
inve$ti="tor$ of "n( $ort wo#@ $@@en#( fin@ it$e#f fi##e@ with "!!ro!ri"te #"w:
enfor+ement "thoritie$ >e+"$e it$ em!#o(ee$ "re "## K!"rt ofL the $"me entit(.
The +ort of "!!e"#$B$ o!inion mi$$e$ the !hr"$e K!"rt ofL from the
@efinition of "!!ro!ri"te #"w:enfor+ement "thorit(. The Whi$t#e>#ower A+t
@efine$ "!!ro!ri"te #"w:enfor+ement "thorit( "$ K" !"rt of " $t"te or #o+"#
=overnment"# entit( or of the fe@er"# =overnment th"t the em!#o(ee in =oo@ f"ith
>e#ieve$ i$ "thoriPe@ to . . . inve$ti="te or !ro$e+te " vio#"tion of +rimin"# #"w.L

3
TEH. GODBT CO%E G 66/.00.7>8.
.
With re$!e+t to the fir$t !"rt of the @efinition, "n
"!!ro!ri"te #"w:enfor+ement "thorit( i$ Ka part of " $t"te . . . entit(.L 1d.
7em!h"$i$ "@@e@8. It i$ not the entire entit(. So, "n em!#o(ee who m"?e$ " re!ort
to "n "!!ro!ri"te #"w:enfor+ement "thorit( m$t te## the K!"rt ofL the entit( th"t
h"$ the "thorit( to inve$ti="te "n@ !ro$e+te +rime. 1d. G 66/.00..
Otherwi$e, for e&"m!#e, We"ther$!oon +o#@ h"ve re!orte@ her "##e="tion of
$>orn"tion of !erIr( to "n em!#o(ee of the Li>r"r( of Con=re$$, >e+"$e the
em!#o(ee w"$ K!"rt ofL the fe@er"# =overnment, "n@ other$ in the fe@er"#
=overnment +"n inve$ti="te "n@ !ro$e+te +rime. ee id. G 66/.00.7>8 7$t"tin= th"t
"n "!!ro!ri"te #"w:enfor+ement "thorit( m"( >e K!"rt of . . . the fe@er"#
=overnmentL8. It i$ not re"$on">#e to thin? th"t the Le=i$#"tre wo#@ h"ve $o
+"ref##( "n@ n"rrow#( @efine@ K"!!ro!ri"te #"w:enfor+ement "thorit(L >t
inten@e@ it to h"ve the e&!"n$ive me"nin= th"t the +ort of "!!e"#$ $==e$t$.
!ueck "n@ -arth +onfirm the +ort of "!!e"#$B$ error. In !ueck, the Cort
note@ th"t the !#"intiff ?new hi$ $!ervi$or Kw"$ not the !ro!er "thorit( .ithin
Tx(OT to re=#"te the re!orte@ vio#"tion$.L !ueck, .30 S.W.1@ "t 552 7em!h"$i$
"@@e@8. '( @i$mi$$in= the +"$e, the Cort im!#i+it#( re+o=niPe@ th"t "n "!!ro!ri"te

.
The @efinition "#$o in+#@e$ tho$e who +"n Kre=#"te n@er or enfor+e the #"w "##e=e@ to >e
vio#"te@ in the re!ort.L TEH. GODBT CO%E G 66/.00.7>8748. 'e+"$e the re!ort in thi$ +"$e
+on+erne@ the "##e=e@ vio#"tion of +rimin"# #"w$, OAG wi## refer on#( to the !ortion of the
@efinition re="r@in= inve$ti="tin= "n@ !ro$e+tin= +rime.

40
#"w:enfor+ement "thorit( within T&%OT @i@ not tr"n$form "## T&%OT
em!#o(ee$, $+h "$ Le+?B$ $!ervi$or, into "!!ro!ri"te #"w:enfor+ement
"thoritie$. An@ in -arth, the Cort he#@ th"t the -niver$it(B$ =ener"# +on$e#,
+hief fin"n+i"# offi+er, intern"# "@itor, "n@ "$$o+i"te !rovo$t were not "!!ro!ri"te
#"w:enfor+ement "thoritie$. /01 S.W.1@ "t 569. The -niver$it( "#$o h"@ " !o#i+e
@e!"rtmentC"n "!!ro!ri"te #"w:enfor+ement "thorit(C>t it$ e&i$ten+e "n@
">i#it( to inve$ti="te +rime @i@ not m"?e other -niver$it( offi+i"#$ "!!ro!ri"te #"w:
enfor+ement "thoritie$, even tho=h the( were K!"rt ofL the $"me entit(. ee id.
"t 569:65.
The +ort of "!!e"#$B$ @e+i$ion i$ in+on$i$tent with !re+e@ent from thi$
Cort "n@ the te&t of the Whi$t#e>#ower A+t. If the A+t i$ to >e effe+tive in rootin=
ot +orr!tion "n@ mi$+on@+t, the re!ort$ m$t >e m"@e to in@ivi@"#$ with the
">i#it( to inve$ti="te or !ro$e+te the vio#"tion$ "t i$$e. The Cort $ho#@ =r"nt
the !etition "n@ +#"rif( who m"( re+eive whi$t#e>#ower re!ort$ when, "$ i$
+ommon#( the +"$e, =overnment entitie$ h"ve @ifferent @e!"rtment$ or $e+tion$.
II" OA!%S REPORTIN! POLICY ONLY CONFIRMS THAT WEATHERSPOON%S
SUPERVISORS ARE NOT APPROPRIATE LAW$ENFORCEMENT
AUTHORITIES"
The +ort of "!!e"#$ "#$o re#ie@ on "n intern"# OAG !o#i+( th"t m"@e
@ivi$ion +hief$ re$!on$i>#e for referrin= re!ort$ of +rimin"# +on@+t to the Offi+e of

44
S!e+i"# Inve$ti="tion$. Weatherspoon, .04/ WL .905963, "t N6:N2. 't the Cort
h"$ never he#@ th"t the ">i#it( or o>#i="tion to !"$$ " re!ort "#on= to "nother !er$on
i$ $ffi+ient to m"?e "n in@ivi@"# "n "!!ro!ri"te #"w:enfor+ement "thorit(. The
+ort of "!!e"#$ erre@ >( $in= th"t !o#i+( to $!!ort We"ther$!oonB$ "##e="tion$
th"t $he h"@ "n o>Ie+tive#( re"$on">#e >e#ief th"t her $!ervi$or$ +o#@ inve$ti="te
or !ro$e+te +rime. ee Gentilello, 135 S.W.1@ "t 255 7ho#@in= th"t "nti:ret"#i"tion
!o#i+( @i@ not e&!"n@ +over"=e of the Whi$t#e>#ower A+t8.
In ,eedham, the Cort he#@ th"t the ">i#it( to forw"r@ inform"tion to "n
"!!ro!ri"te #"w:enfor+ement "thorit( for !ro$e+tion @i@ not m"?e $omeone "n
"!!ro!ri"te #"w:enfor+ement "thorit(. 5. S.W.1@ "t 1.4. Li?ewi$e, in -arth, the
!#"intiff "r=e@ th"t " -niver$it( !o#i+( Ko>#i="te@L -niver$it( offi+i"#$ to te##
-niver$it( !o#i+e ">ot hi$ re!ort$ of +rimin"#:#"w vio#"tion$. /01 S.W.1@ "t 569:
65. Citin= Texas A " # $niversity%&ingsville v. #oreno' 133 S.W.1@ 4.5, 410 7Te&.
.0418 7!er +ri"m8, "n@ ,eedham, 5. S.W.1@ "t 1.4, the Cort o>$erve@ th"t none
of the -niver$it( offi+i"#$ to whom the !#"intiff re!orte@ h"@ the "thorit( to
inve$ti="te or !ro$e+te vio#"tion$ of +rimin"# #"w. -arth, /01 S.W.1@ "t 565.
The !o#i+( th"t We"ther$!oon re#ie$ on $t"te$ th"t KEiFt i$ the re$!on$i>i#it(
of e"+h @ivi$ion +hief . . . to +o##e+t the >"$i+ inform"tion re="r@in= the n"tre of the
+rimin"# vio#"tion, "n@ then refer th"t inform"tion to the Offi+e of S!e+i"#

4.
Inve$ti="tion$ ti#iPin= the "!!ro!ri"te form.L Weatherspoon, .04/ WL .905963, "t
N.. R"ther th"n +re"te " =oo@:f"ith >e#ief th"t We"ther$!oonB$ $!ervi$or$ "re
"!!ro!ri"te #"w:enfor+ement "thoritie$, thi$ !o#i+( +onfirm$ th"t the( "re not.
The( +"nnot inve$ti="te or !ro$e+te +rime$M the( +"n on#( fi## ot !"!erwor? "n@
refer re!ort$ to other$ with the re#ev"nt "thorit(. We"ther$!oon +"nnot h"ve "
=oo@:f"ith >e#ief th"t her $!ervi$or$ were "!!ro!ri"te #"w:enfor+ement "thoritie$
when thi$ !o#i+( m"@e +#e"r th"t $+h "thorit( #"( e#$ewhere. ee 0ela v. /ity of
*ouston, 452 S.W.1@ /3, 6/ 7Te&. A!!.CHo$ton E4$t %i$t.F .006, no !et.8
7fin@in= no =oo@:f"ith >e#ief when the !#"intiff w"$ informe@ wh"t @e!"rtment w"$
"n "!!ro!ri"te #"w:enfor+ement "thorit( >t f"i#e@ to te## "n(one in th"t
@e!"rtment8.
The +ort of "!!e"#$ erre@ in +itin= Office of the Attorney General of Texas v.
Rodriguez, /.0 S.W.1@ 33 7Te&. A!!.CE# P"$o .04., no !et.8, for the !ro!o$ition
th"t the e&i$ten+e of "n intern"# !o#i+( @ire+tin= em!#o(ee$ to re!ort +rime$ to their
$!ervi$or$ tr"n$form$ tho$e $!ervi$or$ into "!!ro!ri"te #"w:enfor+ement
"thoritie$. Weatherspoon, .04/ WL .905963, "t N/. A#tho=h the +ort in
Rodriguez $t"te@ th"t OAG !o#i+ie$ reJire@ re!ort$ of fr"@ to >e m"@e to the
Ethi+$ A@vi$or, the +ort "#$o he#@ th"t, in the $!e+ifi+ +onte&t of the Rodriguez
re+or@, it w"$ o>Ie+tive#( re"$on">#e to >e#ieve th"t the Ethi+$ A@vi$or h"@

41
"thorit( to inve$ti="te +rimin"# +on@+t. Rodriguez, /.0 S.W.1@ "t 401
7KRo@ri=eP "#$o !ro@+e@ evi@en+e th"t the Ethi+$ A@vi$or h"@ the "thorit( to
inve$ti="te "##e="tion$ of fr"@ invo#vin= +rimin"# +on@+t, "n@, in f"+t, e&er+i$e@
th"t "thorit(.L8. Withot th"t $e+on@ ho#@in= or the evi@en+e to $!!ort it,
Ro@ri=ePB$ +#"im $ho#@ h"ve f"i#e@.
If " $!ervi$or Ki$ em!owere@ on#( to refer $$!e+te@ vio#"tion$ e#$ewhere
"n@ #"+?$ free:$t"n@in= re=#"tor(, enfor+ement, or +rime:fi=htin= "thorit(,L then
$he i$ not "n "!!ro!ri"te #"w:enfor+ement "thorit(. Gentilello, 135 S.W.1@ "t 25..
The Cort h"$ inter!rete@ the @efinition to reJire "n o>Ie+tive#( re"$on">#e >e#ief
th"t the !er$on to whom the re!ort w"$ m"@e h"@ inve$ti="tor( or !ro$e+tori"#
!owerCnot "n o>Ie+tive#( re"$on">#e >e#ief th"t the !er$on wo#@ !"$$ her
inform"tion "#on= to $omeone e#$e. ee ,eedham, 5. S.W.1@ "t 1.4M see also !ueck,
.30 S.W.1@ "t 552.
Re$!on$i>#e or="niP"tion$ h"ve !o#i+ie$, #i?e the OAG !o#i+( "t i$$e here,
informin= em!#o(ee$ wh"t to @o if the( $$!e+t i##e="# "+tivit(. In@ee@, Governor
Ri+? Perr( h"$ +omm"n@e@ $t"te "=en+ie$ to h"ve fr"@:!revention !ro=r"m$ "n@
!o#i+ie$. The Governor of the St"te of Te&., E&e+tive Or@er RP 12, )#( 4., .00/,
.3 Te&. Re=. 9.13:/0. S+h !o#i+ie$ "re not !roof th"t the or="niP"tion wi$he$ to
hi@e i##e="# "+tivit(, >t r"ther evi@en+e th"t the or="niP"tion t"?e$ $+h re!ort$

4/
$erio$#(. Cort$ $ho#@ not $e tho$e !o#i+ie$ to e&!"n@ the !rote+tion$ of the
Whi$t#e>#ower A+t >e(on@ wh"t the Le=i$#"tre inten@e@.
III" THIS CASE CONTAINS THE SAME ISSUES THAT THE COURT IS
CONSIDERIN! IN OKOLI"
The i$$e$ in thi$ +"$e mirror tho$e th"t the Cort i$ +on$i@erin= in Okoli. In
Okoli, the Fir$t Cort of A!!e"#$ he#@ th"t the !#"intiffB$ re!ort of mi$+on@+t to
hi$ $!ervi$or$ w"$ $ffi+ient to invo?e the !rote+tion$ of the Whi$t#e>#ower A+t.
Tex. (ep)t of *uman ervs. v. Okoli, 149 S.W.1@ 500, 544 7Te&. A!!.CHo$ton
E4$t %i$t.F .040, !et. fi#e@8. In $o ho#@in=, the +ort of "!!e"#$ re#ie@ on "n intern"#
!o#i+( $t"tin= th"t K" referr"# to Ethe Offi+e of In$!e+tor Gener"#F Ewo#@F >e m"@e
for !o$$i>#e !ro$e+tionL if "n em!#o(ee re!orte@ " vio#"tion of the Pen"# Co@e. 1d.
"t 509. 'e+"$e the Offi+e of In$!e+tor Gener"# w"$ +on$i@ere@ "n "!!ro!ri"te #"w:
enfor+ement "thorit( "n@ w"$ !"rt of the Te&"$ %e!"rtment of Hm"n Servi+e$,
the +ort +on+#@e@ th"t the !#"intiffB$ re!ort to hi$ $!ervi$or$, who were not !"rt
of the Offi+e of In$!e+tor Gener"#, $"ti$fie@ the reJirement$ of the Whi$t#e>#ower
A+t. 1d. "t 540:44. Th$, Okoli !re$ent$ the $"me i$$e$ r"i$e@ in thi$ !etition;
whether " re!ort to one !"rt of " $t"te "=en+( i$ $ffi+ient if "nother !"rt of the
"=en+( i$ "n "!!ro!ri"te #"w:enfor+ement "thorit(, "n@ whether " !o#i+( th"t
$!ervi$or$ wo#@ refer +rimin"# vio#"tion$ to "n "!!ro!ri"te #"w:enfor+ement
"thorit( !ermit$ in@ivi@"#$ to $ee? whi$t#e>#ower !rote+tion when the( re!ort

46
+rimin"# vio#"tion$ on#( to their $!ervi$or$. The Cort h"$ "#re"@( =r"nte@ review
"n@ he"r@ "r=ment in Okoli. It $ho#@ =r"nt thi$ !etition "$ we##.


42
PRAYER
The Cort $ho#@ =r"nt the !etition "n@ @i$mi$$ We"ther$!oonB$
Whi$t#e>#ower A+t +#"im for #"+? of $>Ie+t:m"tter Iri$@i+tion.
Re$!e+tf##( $>mitte@.

GREG A''OTT
Attorne( Gener"# of Te&"$

%ANIEL T. HO%GE
Fir$t A$$i$t"nt Attorne( Gener"#

)ONATHAN F. *ITCHELL
So#i+itor Gener"#


Q$Q 'eth ,#$m"nn
'ETH ,L-S*ANN
A$$i$t"nt So#i+itor Gener"#
St"te '"r No. ./012345

OFFICE OF THE ATTORNEY GENERAL
P.O. 'o& 4.6/5 7*C 0638
A$tin, Te&"$ 95944:.6/5
Te#.; 764.8 312:434/
F"&; 764.8 /9/:.239
'eth.,#$m"nn<te&"$"ttorne(=ener"#.=ov

CO-NSEL FOR THE OFFICE
OF THE ATTORNEY GENERAL

49
CERTIFICATE OF SERVICE
On )#( .5, .04/, thi$ Petition for Review w"$ $erve@ vi" Fi#e A ServeH!re$$
on;
Steven '. Thor!e
$teve<thor!eh"t+her.+om
C"r#" S. H"t+her
+"r#"<thor!eh"t+her.+om
THORPE, HATCHER, A WASHINGTON, LLP.
..4/ *"in Street
%"##"$, Te&"$ 96.04

/ounsel for Weatherspoon


Q$Q 'eth ,#$m"nn
'eth ,#$m"nn







CERTIFICATE OF COMPLIANCE
In +om!#i"n+e with Te&"$ R#e of A!!e##"te Pro+e@re 3./7i87.8, thi$
!etition +ont"in$ .,332 wor@$, e&+#@in= the !ortion$ of the !etition e&em!te@ >(
R#e 3./7i8748.
Q$Q 'eth ,#$m"nn
'eth ,#$m"nn




APPENDIX
Appendix Table of Contents


Order Denying Plea to the Jurisdiction,
Apr. 16, 2013 (C.1!0"!1# ...................................................................................... A

Judg$ent o% the &i%th Court o% Appeals,
June 16, 201' .......................................................................................................... (

Office of the Attorney General v. Weatherspoon,
)o. 0!"13"00632"C*, 201' +, 2-0.-!/
(0e1. App.2Dallas, June 16, 201', pet. %iled# ........................................................ C

034. 5O*60 COD3 7 !!'.002 ................................................................................. D







A
150
c
C.
C ..
{ \ ! :202
4 7 ~
CAUSE NO. 09-06233
GINGER WEATHERSPOON,
Plafutiff,
v.
OFFICE OF THE ATTORNEY GENERAL
OF TEXAS,
Defendant.










ORDER
IN THE 68th JUDICIAL
DISTRICT COURT OF
DALLASCOUKTY,TEXAS
Came on to be heard on the 1st day of April 2013 Defendant Office of the Attorney
General of Texas' Plea to the Jurisdiction, No-Evidence Motion for Summary Judgment,
Objection and Motion to Strike Untimely Petition, and Motion to Exclude Experts. After
considering said motions, the evidence, and re$ponses thereto, the Court is of the opinion that
Defendant's plea . and motion for summary judgment should be denied, the trial should be
continued to accommodate any interlocutory appeal, and that Defendant's Objection and Motion
to Strike Untimely Petition and Motion to Exclude Experts were not reached.
IT IS THEREFORE ORDERED that Defendant's Plea to the Jurisdiction is hereby
DENIED, and the Court finds that Plaintiff in good faith made reports of alleged violations of
law to the appropriate law enforcement authorities under the \\'histleblower Act;
IT IS FURTHER ORDERED that Defendant's No-Evidence Motion for Summary
Judgment is hereby DEKIED on the same grounds as the Plea to the Jurisdiction;
151
r
.....
(
IT IS FURTIIER ORDERED that the bearing scheduled for April 51h on motion to
compel, Defendant's Objection and Motion to Strike Untimely Petition, and Motion to Exclude
,_
Experts is postponed \llltil the Court of Appeals renders a decision on any interlocutory appeal of
the Plea to the Jurisdiction denial, and that trial of this case is now re-sch.eduled for August 6,
2013; and
S I G ~ D this i4r April, 2013.
APPROXED AS TO FpR1v1 ONLY:
.
- ~ ~ d ~ .
Ms. Carla Hatcher
Pbimift7Jrf L
William T. Deane
Defendant's Attorney
HON. MARTIN J HOFFMAN
2




B
11
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
OFFICE OF THE ATTORNEY GENERAL,
Appellant
No. 05-13-00632-CV V.
GINGER WEATHERSPOON, Appellee
On Appeal from the 68th Judicial District
Court, Dallas County, Texas
Trial Court Cause No. DC09-06233.
Opinion delivered by Justice Evans.
Justices O'Neill and Lang-Miers
participating.
In accordance with this Courts opinion of this date, the order of the trial court denying
appellant OFFICE OF THE ATTORNEY GENERALs plea to the jurisdiction is AFFIRMED.
It is ORDERED that appellee GINGER WEATHERSPOON recover her costs of this
appeal from appellant OFFICE OF THE ATTORNEY GENERAL.
Judgment entered this 16th day of June, 2014.
/David Evans/
DAVID EVANS
JUSTICE




C

Office of Atty. Gen. v. Weatherspoon, --- S.W.3d ---- (2014)
2014 WL 2708759, 38 IER Cases 1028
2014 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 2708759
NOTICE: THIS OPINION HAS NOT BEEN RELEASED
FOR PUBLICATION IN THE PERMANENT LAW
REPORTS. UNTIL RELEASED, IT IS SUBJECT TO
REVISION OR WITHDRAWAL.
Court of Appeals of Texas,
Dallas.
OFFICE OF the ATTORNEY GENERAL, Appellant
v.
Ginger WEATHERSPOON, Appellee.
No. 051300632CV. | June 16, 2014.
Synopsis
Background: Assistant attorney general who worked in the
Child Support Division of the Office of the Attorney General
(OAG) brought action against OAG, alleging violation of
Whistleblower Act after she was allegedly terminated for
reporting suspected criminal violations by a co-worker to
her Division head. The 68th Judicial District Court, Dallas
County, Martin Hoffman, J., denied OAG's plea to the
jurisdiction. OAG appealed.
[Holding:] The Court of Appeals, Evans, J., held that
assistant attorney general's report to Division head was made
to an appropriate law enforcement authority under Act.
Affirmed.
West Headnotes (8)
[1] Courts
Determination of Questions of Jurisdiction
in General
Whether a trial court has subject matter
jurisdiction is a question of law.
Cases that cite this headnote
[2] Appeal and Error
Cases Triable in Appellate Court
Court of Appeals reviews de novo whether a
plaintiff has set forth facts that affirmatively
demonstrate a trial court's subject matter
jurisdiction.
Cases that cite this headnote
[3] Pleading
Scope of Inquiry and Matters Considered in
General
Pleading
Questions of Law and Fact
Where a plea to the jurisdiction challenges the
existence of jurisdictional facts, the trial court
considers the relevant evidence submitted by the
parties to resolve the jurisdictional issues, and
if the evidence does not negate jurisdiction as a
matter of law or if it creates a fact issue, the court
should deny the plea.
Cases that cite this headnote
[4] Officers and Public Employees
Grounds for Removal or Other Adverse
Action
For sovereign immunity for claims brought
under the Whistleblower Act to be waived,
the plaintiff must be a public employee and
properly allege a violation of the Act. V.T.C.A.,
Government Code 554.0035.
Cases that cite this headnote
[5] Officers and Public Employees
Grounds for Removal or Other Adverse
Action
Court of Appeals determines whether the
jurisdictional prerequisite of alleging a violation
of the Whistleblower Act, as element of waiver
of sovereign immunity, has been met by
examining the elements of a whistleblower claim
as set forth in the Act. V.T.C.A., Government
Code 554.002(a, b), 554.0035.
Cases that cite this headnote
[6] Officers and Public Employees
Office of Atty. Gen. v. Weatherspoon, --- S.W.3d ---- (2014)
2014 WL 2708759, 38 IER Cases 1028
2014 Thomson Reuters. No claim to original U.S. Government Works. 2
Grounds for Removal or Other Adverse
Action
Reports made internally by a public
employee may satisfy the requirements of the
Whistleblower Act if the employer has not only
internal authority to require compliance, but also
the power to enforce, investigate, or prosecute
violations against third parties outside the public
employer itself. V.T.C.A., Government Code
554.002(a, b).
Cases that cite this headnote
[7] Attorney General
Deputies, Assistants, and Substitutes
Report that assistant attorney general in the
Child Support Division of Office of the
Attorney General (OAG) made to head of
Division concerning fellow employee's alleged
criminal violations was made to an appropriate
law enforcement authority as required by
Whistleblower Act; assistant attorney general
was required to report suspected criminal
violations only to her Division head, who was
required to forward report to Office of Special
Investigations, and the Division and its head
were part of the OAG, which was authorized
through its Office of Special Investigations to
investigate or prosecute violations of criminal
law. V.T.C.A., Government Code 554.002(a,
b); V.T.C.A., Penal Code 39.015.
Cases that cite this headnote
[8] Officers and Public Employees
Grounds for Removal or Other Adverse
Action
The power of the Office of the Attorney General
(OAG) to investigate allegations of criminal
conduct is, standing alone, sufficient to make
it an appropriate law enforcement authority
to receive a report of a violation within the
meaning of the Whistleblower Act. V.T.C.A.,
Government Code 554.002.
Cases that cite this headnote
Attorneys and Law Firms
Amanda CochranMcCall, James B. Eccles, Shelley Alisa
Dahlberg, Daniel T. Hodge, William T. Deane, David C.
Mattax, Greg Abbott, Austin, for Appellant.
Steven B. Thorpe, Carla S. Hatcher, Dallas, for Appellee.
Before Justices O'NEILL, LANGMIERS, and EVANS.
Opinion
OPINION
Opinion by Justice EVANS.
*1 The Office of the Attorney General appeals the denial of
its plea to the jurisdiction in this suit under the Whistleblower
Act. The OAG contends the trial court erred in concluding
Ginger Weatherspoon made a good faith report of a violation
of law to an appropriate law enforcement authority and
in determining that it had subject matter jurisdiction over
Weatherspoon's claims. Because we conclude Weatherspoon
sufficiently alleged a claim under the Act to invoke subject
matter jurisdiction, we affirm the trial court's order.
FACTUAL BACKGROUND
As the basis for her whistleblower suit, Ginger Weatherspoon
alleged the following facts. Weatherspoon began working
for the OAG as an assistant attorney general in the Child
Support Division in July 2006. According to Weatherspoon,
on February 1, 2008, two senior regional attorneys with the
OAG, James Jones and Harry Monck, ordered her to report
her recent interactions with a district judge. In response,
Weatherspoon sent them an e-mail containing facts about a
conversation with the judge. Four days later, Weatherspoon
received an e-mail with an attached affidavit for her to sign
concerning her conversation. A managing attorney with the
OAG, Paula Crockett, told her they intended to use the
affidavit as evidence to have the judge recused from hearing
cases involving the OAG. The affidavit was also going to
be used to support a judicial misconduct complaint against
the judge. Weatherspoon refused to sign the affidavit stating
that she believed it misrepresented various facts regarding her
conversation with the judge and mischaracterized the tone and
nature of the conversation.
Office of Atty. Gen. v. Weatherspoon, --- S.W.3d ---- (2014)
2014 WL 2708759, 38 IER Cases 1028
2014 Thomson Reuters. No claim to original U.S. Government Works. 3
According to Weatherspoon, on February 11, Jones sent
Weatherspoon an e-mail ordering her to sign the affidavit.
Weatherspoon responded that the affidavit was false as
written and asked if she could revise it. Jones rejected
Weatherspoon's request and Weatherspoon again refused
to sign the affidavit. When Jones continued to insist that
Weatherspoon sign the affidavit, Weatherspoon reported the
matter to Crockett.
Weatherspoon alleged that the next day, Jones ordered her to
appear at the OAG administrative office to sign the affidavit.
When Weatherspoon continued to refuse to sign, Jones began
to yell and slammed his fist on the desk. Weatherspoon was
then ordered into a separate room and was told she could
not leave until she had prepared a written statement against
the judge. Weatherspoon attempted to make a report about
Jones's conduct to his direct supervisor, but Jones prevented
her from doing so. Weatherspoon was finally allowed to
leave after she prepared a written statement concerning her
conversation with the judge. According to Weatherspoon, the
report she created was accurate.
Weatherspoon stated that, immediately after being allowed
to leave, she contacted Crockett to report Jones's attempts to
force her to sign the allegedly false affidavit. Weatherspoon
asserted that Jones was exerting pressure in his official
capacity in violation of the Texas Penal Code provisions
concerning abuse of official capacity and official oppression.
Weatherspoon further asserted that Jones's insistence that she
sign a false affidavit constituted subornation of perjury in
violation of federal law. Weatherspoon reported the same
violations to her managing attorney, an attorney trainer,
an attorney in the open records department, and to Alicia
Key, the Child Support Director for the OAG, and Charles
Smith, the Deputy Director of Child Support. Key told
Weatherspoon that the Attorney General wanted Key to
personally apologize for what happened and that they would
look into it and there would be a full investigation.Key also
told Weatherspoon not to discuss the matter with anyone.
*2 The OAG has mandatory procedures for reporting
violations of law occurring within its office. The OAG
Policies and Procedures Manual states that,
[i]t is the policy of the Office of
the Attorney General that all potential
criminal violations be referred to the
appropriate division of the Office
of Special Investigations. Employees
shall notify their division chief upon
learning of a potential criminal
violation. This includes violations
discovered in the performance of their
regular duties or assignments and/or
requests for assistance from outside
agencies. It is the responsibility
of each division chief, or their
designee, to collect the basic
information regarding the nature of the
criminal violation, and then refer that
information to the Office of Special
Investigations utilizing the appropriate
form.... Under no circumstances shall
an employee not assigned to OSI refer
a criminal violation encountered in
the course of their official duties to
an outside law enforcement agency
unless exigent circumstances exist that
threaten the immediate loss of life,
and then only with the knowledge and
approval of Executive Administration.
Weatherspoon claimed that, after she reported the alleged
violations in compliance with the OAG's policy, she
was retaliated against and eventually terminated from her
position. Weatherspoon exhausted the OAG's grievance
procedures and filed this suit asserting that her termination
was done in violation of the Whistleblower Act.
The OAG filed a plea to the jurisdiction contending that
Weatherspoon failed to allege sufficient facts to establish
a whistleblower violation and a consequent waiver of the
OAG's sovereign immunity. The OAG also filed a no-
evidence motion for summary judgment on the same grounds.
Weatherspoon responded and submitted an affidavit setting
forth the facts she contended formed the basis of her claims.
The trial court denied the OAG's plea and motion for
summary judgment. The OAG then brought this interlocutory
appeal from the trial court's denial of its plea to the
jurisdiction.
ANALYSIS
[1] [2] [3] Whether a trial court has subject matter
jurisdiction is a question of law. See Tex. Natural Res.
Conservation Comm'n v. ITDavy, 74 S.W.3d 849, 855
(Tex.2002). We review de novo whether a plaintiff has set
forth facts that affirmatively demonstrate a trial court's subject
Office of Atty. Gen. v. Weatherspoon, --- S.W.3d ---- (2014)
2014 WL 2708759, 38 IER Cases 1028
2014 Thomson Reuters. No claim to original U.S. Government Works. 4
matter jurisdiction. See Tex. Dep't. of Parks and Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex.2004). Where a plea
to the jurisdiction challenges the existence of jurisdictional
facts, as is the case here, the court considers the relevant
evidence submitted by the parties to resolve the jurisdictional
issues. Id. at 227.If the evidence does not negate jurisdiction
as a matter of law or if it creates a fact issue, the trial court
should deny the plea. See Office of Attorney Gen. of Tex. v.
Rodriguez, 420 S.W.3d 99, 102 (Tex.App.-El Paso 2012, no
pet.).
[4] [5] Section 554.0035 of the Texas Government Code
expressly waives sovereign immunity for claims brought
under the Texas Whistleblower Act. SeeTEX. GOV'T CODE
ANN. 554.0035 (West 2012). For immunity to be waived,
however, the plaintiff must be a public employee and properly
allege a violation of the Act. See State v. Lueck, 290 S.W.3d
876, 881 (Tex.2009). We determine whether the jurisdictional
prerequisite of alleging a violation has been met by examining
the elements of a whistleblower claim as set forth in section
554.002 of the government code. See Mullins v. Dallas Indep.
Sch. Dist., 357 S.W.3d 182, 186 (Tex.App.-Dallas 2012, pet.
denied).
*3 Under section 554.002, a state or local governmental
entity may not suspend or terminate the employment of,
or take other adverse personnel action against, a public
employee who in good faith reports a violation of law by the
employing governmental entity or another public employee to
an appropriate law enforcement authority.SeeTEX. GOV'T
CODE ANN. 554.002(a). 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.Id. 554.002(b).
[6] In this case, Weatherspoon alleged that she made
a report concerning a fellow public employee who had
allegedly committed violations of criminal law, including
abuse of official capacity, official oppression, and suborning
perjury, and that her employment was terminated as a
result. Weatherspoon further alleged that she made her
reports to numerous people including the head of her
division at the OAG as required by the OAG's policies
and procedures manual. On appeal, the OAG presents a
single issue contending these allegations fail to show that
Weatherspoon made her report to an appropriate law
enforcement authority as required by the Act. In making
this argument, the OAG relies heavily on cases holding that
reports made internally to one's own employer are generally
insufficient to invoke the Act's protections. See e.g. Univ.
of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d
680, 68586 (Tex.2013). This is because an employer's ability
to require internal compliance with a law does not equate
with the power to regulate or enforce the law, or investigate
or prosecute violations of the law as required by the Act's
definition of appropriate law enforcement authority. See
id.As noted by the Texas Supreme Court, however, reports
made internally may satisfy the requirements of the Act
if the employer has not only internal authority to require
compliance, but also the power to enforce, investigate, or
prosecute violations against third parties outside the entity
itself. Id. at 686.For example, a police officer may report
a criminal act committed by her partner to the appropriate
supervisor or division of the police department and come
under the protections of the Act. Id.
[7] [8] The OAG argues that Weatherspoon did not
make her report to an appropriate law enforcement authority
because she reported the alleged criminal violations only to
her division head and others in the Child Support Division.
It is undisputed that the Child Support Division does not
address allegations against third parties of criminal fraud and
abuse of office. It is also undisputed, however, that the Child
Support Division is part of the OAG. The evidence presented
by Weatherspoon shows that the OAG, through its Office
of Special Investigations, has the authority to investigate
complaints not only of internal fraud and corruption, but
also fraud and corruption by third parties. Furthermore, the
OAG has concurrent jurisdiction with the consent of the local
prosecutor to prosecute abuses of official capacity and official
oppression by third parties.
1
SeeTEX. PENAL CODE ANN.
39.015 (West 2011).
*4 Pursuant to the OAG's own policies and procedures,
Weatherspoon's division head at the OAG was required to
refer Weatherspoon's report to the OAG's Office of Special
Investigations. As stated above, section 554.002(b) of the
government code provides that a report is made to an
appropriate law enforcement authority if the authority to
whom the report is made is part of a governmental entity
that the employee believes in good faith is authorized to
investigate or prosecute a violation of criminal law. Because
the Child Support Division and, consequently, its division
head are part of the OAG, and the OAG, through its
Office of Special Investigations, is authorized to investigate
Office of Atty. Gen. v. Weatherspoon, --- S.W.3d ---- (2014)
2014 WL 2708759, 38 IER Cases 1028
2014 Thomson Reuters. No claim to original U.S. Government Works. 5
or prosecute violations of criminal law such as those alleged
by Weatherspoon, Weatherspoon's report to her division head
constitutes a report made to an appropriate law enforcement
authority.
The facts presented here are similar to those presented in
Office of Atty. Gen. of Tex. v. Rodriguez.See Rodriguez,
420 S.W.3d at 10001.In Rodriguez, the plaintiff, like
Weatherspoon, was an employee in the OAG's Child
Support Division. Id. at 100.The plaintiff suspected that her
assistant was committing insurance fraud and tampering with
governmental records. Id. According to the OAG policy in
place at the time, employees were required to report unethical,
fraudulent, or illegal conduct to both an immediate supervisor
and the ethics advisor. Id. at 103.The plaintiff first made her
report to her supervisor and, after her supervisor told her to do
so, made a second report to the ethics advisor. Id. at 100.The
ethics advisor then requested an investigation be conducted
by the Criminal Investigation Division. Id. Following the
investigation, the ethics advisor released a report concluding
that the assistant had not committed fraud, but had misstated
information. Id. at 101.The plaintiff was later terminated and
she brought suit against the OAG under the Whistleblower
Act. Id.
The OAG filed a plea to the jurisdiction and argued, as it does
here, that the plaintiff failed to show she made her report to
an appropriate law enforcement authority because none of the
persons to whom she made her report had the authority to
prosecute violations of criminal law. Id. The court rejected
this argument noting that the plaintiff made her report to those
persons she was required to make her report to pursuant to
the OAG's policies. Id. at 103.The court further stated that the
plaintiff's allegations did not involve matters of mere internal
discipline, but rather allegations of violations of criminal
law that the ethics advisor along with the OAG's Criminal
Investigation Division had the authority to investigate. Id.
Based on these jurisdictional facts, the court concluded the
trial court correctly denied the OAG's plea to the jurisdiction.
Id. at 104.
The OAG contends Rodriguez is distinguishable on the basis
that the plaintiff made her report directly to the ethics advisor
who had the power to conduct an investigation, and not
just to her supervisor in the Child Support Division as was
done by Weatherspoon. We do not find this distinction
persuasive. The OAG policy in effect in Rodriguez required
the plaintiff to report illegal conduct to both her supervisor
and the ethics advisor. See Rodriguez, 420 S.W.3d at 103.In
contrast, the policy under which Weatherspoon was operating
required her to report suspected criminal violations to only
her division head. The division head receiving the report was
then required to collect information regarding the allegation
and forward it to the Office of Special Investigations. Under
these mandatory policies, a report made to a division head is,
in effect, a report made to the Office of Special Investigations,
both of which are part of the OAG, consistent with section
554.002(b) of the government code. SeeTex. Gov't Code Ann.
554.002(b). As discussed above, the OAG is an appropriate
law enforcement authority.
*5 The OAG argues that compliance with an internal
procedure for reporting criminal violations and the belief that
the report will be forwarded to those with an ability to conduct
an investigation or enforce the law is insufficient to meet the
requirements of the Act. While this may be true under some
circumstances, the facts of this case lead to a different result.
In University of Houston v. Barth, the Texas Supreme Court
held that compliance with the university's policy for reporting
suspected criminal activity to a school official combined with
the possibility that the report would be forwarded to the
university police did not constitute a report to an appropriate
law enforcement authority. See Univ. of Houston v. Barth,
403 S.W.3d 851, 858 (Tex.2013). The plaintiff in Barth made
his report of suspected criminal activity to various university
officials including the chief financial officer, general counsel,
dean, internal auditor, and associate provost. Id. at 853.He
argued, among other things, that each of those people was
obligated to report the alleged violations to the university
police. Id. at 85758.The Barth opinion does not indicate
that there was any showing either that the policy at issue
required the person receiving the report of suspected criminal
activity to forward it on specifically to the university police
or that the university police had authority to investigate or
prosecute persons not affiliated with the university, i.e. third
parties. See Univ. of Houston v. Barth, 365 S.W.3d 438, 441
(Tex.App.-Houston [1st Dist.] 2011), rev'd,403 S.W.3d 851
(Tex.2013) (policy obligated employees to report suspected
criminal activity to one of several listed officials including
chief financial officer, general counsel, and university police).
Because the policy did not require anything other than
an internal report to persons without the power to either
investigate or prosecute alleged violations of law, compliance
with the policy was insufficient under the Act. See Barth, 403
S.W.3d at 858.
Office of Atty. Gen. v. Weatherspoon, --- S.W.3d ---- (2014)
2014 WL 2708759, 38 IER Cases 1028
2014 Thomson Reuters. No claim to original U.S. Government Works. 6
Similarly, in Texas Department of Transportation v.
Needham, the plaintiff reported a co-worker's alleged
criminal conduct to his supervisors at the Department of
Transportation. See Tex. Dept. of Transp. v. Needham,
82 S.W.3d 314, 318 (Tex.2002). The plaintiff argued that
he reasonably believed either that his employer was an
appropriate law enforcement authority or that his employer
could forward his report on to another entity to prosecute
the alleged violations. See id. at 31819.The supreme court
concluded that the Department of Transportation was not
an appropriate law enforcement authority and the plaintiff's
subjective belief that his report could be forwarded to another
entity was not sufficient to meet the Act's requirements. Id.
at 321.Belief in the possibility that a report will be sent to
an appropriate law enforcement authority does not equate
with knowledge that the person to whom one reports works
for an appropriate law enforcement authority and is required
to forward the report to the appropriate persons within that
same entity for investigation or prosecution. It is the latter
circumstance that is presented here.
*6 In this case, Weatherspoon was specifically directed to
report suspected criminal violations by her co-workers to her
division head at the OAG. The division head at the OAG
was then required to forward Weatherspoon's report to the
OAG's Office of Special Investigations. The OAG itself and,
more specifically, the Office of Special Investigations, is an
appropriate law enforcement authority with respect to the
criminal violations Weatherspoon alleged. Accordingly, there
was more than a mere possibility that Weatherspoon's report
would reach persons with specific authority to investigate
or prosecute the alleged criminal violations. Weatherspoon
made her report to persons employed by an appropriate
law enforcement entity who were required to ensure that
her allegations were reported to the proper persons and she
was assured that this had been done. Under these facts,
we conclude Weatherspoon has sufficiently alleged that she
made good faith report of a violation of law by another public
employee to an appropriate law enforcement authority. We
resolve the OAG's sole issue against it.
We affirm the trial court's order denying the OAG's plea to
the jurisdiction.
1
The OAG suggests that because its authority to prosecute
cases of abuse of official capacity and official oppression
requires the consent of the local county or district
attorney, its power is not free-standing as required
by the Texas Supreme Court's opinion in Gentilello.See
Gentilello, 398 S.W.3d at 682.The term free-standing
was used by the court to distinguish entities that must
refer suspected violations elsewhere for investigation
or prosecution. Id. The requirement that an entity
receive consent to prosecute a criminal violation is
fundamentally different than the entity having no
authority to prosecute the violation at all. Furthermore,
the OAG needs no consent to investigate allegations
of abuse of office even if prosecution in court of
such matters by the OAG requires consent of local
prosecutors. The power to investigate such allegations is,
standing alone, sufficient to make it an appropriate law
enforcement authority. SeeTEX. GOV'T CODE ANN.
554.002.
Parallel Citations
38 IER Cases 1028
End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.



D

554.002. Retaliation Prohibited for Reporting Violation of Law, TX GOVT 554.002
2014 Thomson Reuters. No claim to original U.S. Government Works. 1
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 5. Open Government; Ethics (Refs & Annos)
Subtitle A. Open Government
Chapter 554. Protection for Reporting Violations of Law (Refs & Annos)
V.T.C.A., Government Code 554.002
554.002. Retaliation Prohibited for Reporting Violation of Law
Currentness
(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action
against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public
employee to an appropriate law enforcement authority.
(b) In this section, 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.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 721, 2, eff. June
15, 1995.
Notes of Decisions (450)
V. T. C. A., Government Code 554.002, TX GOVT 554.002
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.