It's winter in the Panhandle (and everywhere else in Texas, I guess), and the cold wind has sapped my intelligence. Thus, I turn to you, wise and noble civil practitioners. I have conducted my own analysis of the question I pose, and arrived at my own answer, but I litigate in a less-than-hospitable forum. Hence, outside perspective is useful before I proceed to skirt the edges of contempt.

The advice I seek is a primer on Whistleblower Act defense. Without unnecessary elaboration, the scenario is this: Obnoxious Road & Bridge employee gets fired for mouthing off. After being fired, he runs and cries to County Judge (verbally). Six days later, his lawyer submits grievance appeal letter. Grievance Procedure requires submission of appeals to County Judge to be in writing and filed within five days of exhaustion of previous step. Thus, obnoxious former employee (OFE)has not intitiated each step of grievance procedure. Simple enough. The troublesome issue for me concerns his pleaded "report" of purportedly unlawful conduct.

According to the pleadings, the OFE's "report" was his vociferous complaints to his supervisors of the department head's personal use of Road & Bridge gasoline. Even a yokel like me knows that, under Texas Dep't of Transp. v. Needham, employment-related disciplinary authority, without concurrent law enforcement authority (recalling this report concerned alleged theft) is insufficient as a matter of law to show the statutory requisite that the report be made to an "appropriate law enforcement authority." In Needham, the report to supervisors also failed the "good faith" requirement. Thus, if my simplistic analysis is correct, OFE has pleaded himself out of court. Here's the issue though, and it's of great concern to me since the judge who will hear the case doesn't like me or my office:

Is a clear failure to state a cause of action under the Whistleblower Act properly dispatched through a plea to the jurisdiction (as is generally true under the Tort Claims Act per Texas Dep't of Criminal Justice v. Miller and others)? The Austin Court of Appeals has suggested the answer is "no" in Texas Bd. of Criminal Justice v. Feinblatt, which concerned a plaintiff's failure to plead good faith belief that a law had been violated and that the report was made to an appropriate law enforcement authority. Other courts of appeals, however, seem to view the Whistleblower Act as akin to the Tort Claims Act. That is, because the act effectuates the waiver of sovereign immunity for claims under the act, a failure to properly invoke the act leaves the jurisdictional bar of sovereign immunity intact. What do you smart people think?

Since you probably feel the urge to attend the warmer climes of Austin (probably why you are quoting the Austin Court of Appeals) this could be the opportunity to let that other Court in Austin, the Supremes, decide this in the County's favor. It would seem that the two Acts, both representing a waiver of sovereign immunity, should be treated the same. Must be warmer in Amarillo than you thought or is it just the low humidity. Looking forward to seeing you downstate.