Opinion=20
issued July 27, 2006
=
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-03-00678-CV
__________
THE CITY OF HOUSTON, =
Appellant
V.
SAM LEVINGSTON, D.V.M., Appellee
On =
Appeal from=20
the 125th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2000-24777
OPINION ON=20
REHEARING
<=
/SPAN>We=20
grant appellant=E2=80=99s motion for rehearing, withdraw our =
opinion dated=20
February 2, 2006, and substitute this opinion in its =
place.
<=
/SPAN>In=20
this Texas Whistleblower Act ![3DFootnote](3D"")
lawsuit, appellant, the City of =
Houston=20
(=E2=80=9Cthe City=E2=80=9D), challenges the trial court=E2=80=99s =
judgment, rendered after a jury=20
verdict, awarding appellee, Dr. Sam Levingston, $116,500 in past =
lost=20
wages, $235,000 as the value of reinstatement to =
Levingston=E2=80=99s former=20
position, fringe benefits and seniority rights, and $250,000 in =
capped=20
compensatory damages, plus attorneys=E2=80=99 fees, pre- and =
post-judgment=20
interest, and court costs.
<=
/SPAN>In=20
three of its seven issues, the City contends that there is no =
evidence to=20
support the jury=E2=80=99s findings that Levingston, in good =
faith, reported a=20
violation of law to an appropriate law enforcement authority, that =
the=20
termination of Levingston=E2=80=99s employment was caused by the =
report, and the=20
jury=E2=80=99s award of mental-anguish damages. In its remaining =
issues, the City=20
contends that the trial court erred in awarding Levingston the =
monetary=20
value of reinstatement to his former position without subjecting =
that=20
award to the applicable statutory damages cap; awarding Levingston =
prejudgment interest on his capped compensatory damages; applying =
a=20
=E2=80=9Cmultiplier=E2=80=9D to its award of Levingston=E2=80=99s =
attorneys=E2=80=99 fees; denying the=20
City=E2=80=99s request to include a separate question in the jury =
charge regarding=20
the City=E2=80=99s affirmative defense; and denying the =
City=E2=80=99s pretrial motion to=20
strike Levingston=E2=80=99s untimely request for a jury =
trial.
<=
/SPAN>We=20
modify the trial court=E2=80=99s judgment to provide for the award =
of prejudgment=20
interest on the amount of $116,500 rather than on the amount of=20
$365,500. We affirm the =
judgment of=20
the trial court in all other respects.
Factual and=20
Procedural Background
<=
/SPAN>Dr.=20
Levingston served the City as a senior veterinarian in its Bureau =
of=20
Animal Regulation and Care (=E2=80=9CBARC=E2=80=9D), a division of =
the City=E2=80=99s Department=20
of Health and Human Services, from=20
September 8, 1992 until his employment was terminated on March 23, =
2000.=20
Prior to his termination, Levingston had over 40 years of =
experience as a=20
licensed veterinarian.
<=
/SPAN>BARC, previously known as =E2=80=9Cthe City =
of Houston Rabies=20
Control Facility,=E2=80=9D has the responsibility for the control =
of rabies within=20
the City.
The record reveals, moreover, =
that =E2=80=9CBARC=20
has law enforcement responsibilities in animal-related issues =
within the=20
City.=E2=80=9D The BARC facility intakes approximately 28,000 to =
30,000 animals in=20
a given year. Out of these animals, approximately 25,000 are =
euthanized by=20
BARC, and another 120 to 140 animals are dead on arrival or die of =
natural=20
or unexplained causes while in BARC=E2=80=99s care.
<=
/SPAN>At=20
trial, Levingston testified that during his employment with BARC, =
he saw=20
=E2=80=9Ca number of things=E2=80=9D occurring at BARC=E2=80=99s =
facility that =E2=80=9Crose to the level=20
of animal abuse.=E2=80=9D Among other problems, he noted that =
individual pens in=20
the BARC kennel were too small and overcrowded and that this =
caused=20
animals to fight over food. He also noted that when the air =
conditioners=20
on BARC trucks did not work, animals would arrive at the BARC =
facility=20
heated, exhausted, and sometimes dead.
<=
/SPAN>Levingston=20
stated that BARC kennel attendants, in a cruel and inhumane =
manner, held=20
animals in a dip tank with their heads under water =E2=80=9Cto =
teach them a=20
lesson.=E2=80=9D He saw BARC kennel attendants jerk dogs off of =
BARC trucks onto a=20
concrete floor, which would =E2=80=9Ccreate painful =
breaks.=E2=80=9D Levingston also saw=20
BARC kennel attendants pitch puppies =E2=80=9Clike a baseball from =
the truck to=20
the holding pen, which had a concrete floor.=E2=80=9D He explained =
that when=20
mother dogs were brought into the BARC facility, their puppies, =
due to a=20
=E2=80=9Cfaulty floor,=E2=80=9D would often get stuck down into a =
four inch drain. On one=20
occasion, BARC kennel attendants washed three puppies down the sewer =
line.=20
Levingston also stated that cats were sometimes =
=E2=80=9Ceuthanized in burlap=20
sacks by throwing them under the back wheels of a =
truck.=E2=80=9D
He also explained that BARC =
employees did=20
not properly feed and water animals, that they would ration food =
for=20
animals scheduled to be euthanized, and that =E2=80=9Cthe attitude =
was, =E2=80=98Well,=20
they=E2=80=99re only going to be here three days, so =
they=E2=80=99ll either go home or=20
they=E2=80=99ll be euthanized, so why waste the food on =
them?=E2=80=99=E2=80=9D
<=
/SPAN>Levingston=20
further testified that he reported these matters to the attention =
of John=20
Nix, the Division Manager of BARC, from the time that Nix became =
Division=20
Manager in September 1996 until May 21, 1999. He normally =
communicated his=20
complaints to Nix by periodically leaving Nix notes written on =
5-inch by=20
8-inch index cards. Levingston would complete an index card when =
he =E2=80=9Cfound=20
the abuse,=E2=80=9D typically at the end of his workday between =
4:00 and 7:00 p.m.=20
He had to leave Nix written reports because Nix typically left the =
BARC=20
facility at 2:00 p.m. on business days. Levingston explained that =
animal=20
abuse at BARC grew worse after Nix became Division Manager =
because, unlike=20
his predecessor, who =E2=80=9Cwas in the kennel every single =
day,=E2=80=9D Nix was in the=20
kennel only =E2=80=9Ctwice a month=E2=80=9D as he walked =
=E2=80=9Cthrough to pick up a city=20
vehicle.=E2=80=9D Despite his complaints, Levingston =
=E2=80=9Cnever saw a change=E2=80=9D at=20
BARC.
<=
/SPAN>In=20
May 1999, Levingston =
decided to=20
handwrite a formal letter outlining his complaints to Nix because =
his=20
complaints about animal abuse were being =
=E2=80=9Cignored.=E2=80=9D Levingston was=20
concerned that his written reports =E2=80=9Cprobably had been =
thrown away without=20
any action taken, so [he] wanted this letter typed and placed in =
[his]=20
file and to show evidence of the inhumane treatment.=E2=80=9D When =
Levingston=20
spoke with his direct supervisor, Dr. Adel Hanna, who was also a =
senior=20
veterinarian at BARC, about Nix=E2=80=99s failure to respond to =
his complaints,=20
Hanna told him that =E2=80=9CNix was getting kind of irritated =
because=20
[Levingston] was giving him so many cards and talking so much =
about the=20
inhumane treatment of animals.=E2=80=9D On=20
May 20, 1999, Levingston gave his handwritten letter, which was to =
be=20
dated May 21, 1999, to the kennel=E2=80=99s secretary.
<=
/SPAN>In=20
the letter, Levingston offered suggestions for improving the =
operation of=20
the facility, proposed changes, and noted:
The animals are treated inhumanely =
including=E2=80=94by=20
improper restraints, a lack of water and sometimes food, and rough =
handling by uncaring employees=E2=80=94this should be corrected =
before the SPCA or=20
another humane organization finds out.
When asked why he made all of his =
reports to Nix=20
at BARC and =E2=80=9Cnot somewhere else,=E2=80=9D Levingston =
testified:
It=E2=80=99s against the law to treat =
the animals=20
inhumanely. This is the authority for which the inhumane treatment =
should=20
be reported to. And it=E2=80=99s the law.
He explained that, as a BARC senior =
veterinarian,=20
he in fact =E2=80=9Cdid go out a few times to investigate animal =
abuse with a team=20
from BARC.=E2=80=9D
<=
/SPAN>Nix=20
testified that although he did not recall discussing animal abuse =
at BARC=20
with Levingston before receiving Levingston=E2=80=99s May 20 =
letter, his=20
recollection could be wrong. Nevertheless, in a =E2=80=9Cconfidential=E2=80=9D =
memorandum to Levingston dated=20
June 1, 1999, Nix stated that he had reviewed Levingston=E2=80=99s =
handwritten=20
memorandum, which was delivered to him on May 24, 1999, and was =
=E2=80=9Cgreatly=20
disturbed=E2=80=9D by Levingston=E2=80=99s allegations. Nix =
further stated that he had=20
=E2=80=9Cinitiated an investigation of these allegations=E2=80=9D =
and requested =E2=80=9Cspecific=20
detail in order to initiate appropriate action against parties who =
participate in such mistreatment.=E2=80=9D
<=
/SPAN>Levingston=20
then replied to Nix=E2=80=99s memorandum in a=20
June 3, 1999 handwritten letter, noting, among other things, that =
during=20
his daily observation walks in the kennel, he saw mother dogs and =
cats=20
with their young without food and water almost daily. He also =
noted that=20
he had previously advised Nix =E2=80=9Cmany times=E2=80=9D of =
problems with the=20
performance of the Kennel Master, Robert Trottie, who supervised =
the=20
kennel attendants, and that he had been doing Trottie=E2=80=99s =
job =E2=80=9Cfor the last=20
two years.=E2=80=9D Although Levingston never heard back from Nix =
in regard to his=20
June 3 letter, Levingston continued to supply Nix with his written =
complaints about the care of animals in the kennel and the =
treatment of=20
specific animals. He did this until he received a September 1, =
1999 letter=20
from Dr. Margaret Kendrick, the Director of the City=E2=80=99s =
Department of=20
Health and Human Services, advising him that Nix had recommended =
that his=20
employment be terminated.
<=
/SPAN>In=20
the letter, Kendrick notified Levingston that it was =
=E2=80=9Calleged that [he]=20
directly violated BARC=E2=80=99s policy regarding negligence in =
the treatment of=20
animals resulting in unwarranted suffering and death.=E2=80=9D =
Specifically, she=20
cited =E2=80=9Cthe deaths of a female Rottweiler from =
complications due to an=20
uterine infection and hemorrhage on May 6, 1999 and a quarantined =
Great=20
Dane on July 22, 1999.=E2=80=9D The letter noted that a meeting =
had been scheduled=20
for later that month. Levingston testified that Hanna had received =
a=20
similar letter and that they were =E2=80=9Cshocked and both ill at =
the same time=E2=80=9D=20
because the letters were unexpected. Nix had never disciplined or =
even=20
spoken with Levingston about his treatment of either animal, and=20
Levingston had received =E2=80=9Cstrong=E2=80=9D performance =
evaluations in regard to his=20
service.
<=
/SPAN>The=20
record reveals that instead of initiating an investigation of =
Levingston=E2=80=99s=20
animal abuse allegations as represented by Nix in his June 1, 1999 =
memorandum to Levingston, Nix, who was not a veterinarian, wrote a =
memorandum on June 10, 1999 =
to Dr.=20
Ardath Payne, the Assistant Director of the Department of Health =
and Human=20
Services, recommending that both Levingston and Hanna be =
indefinitely=20
suspended from BARC because they were =E2=80=9Cnegligent in the =
treatment of [a]=20
female Rottweiler.=E2=80=9D Nix based his recommendation on a June =
2, 1999=20
report
of Hannie Simmons, BARC=E2=80=99s =
Animal Control=20
Officer Supervisor, who, at =
Nix=E2=80=99s=20
direction, investigated the =
death of=20
the Rottweiler. Nix felt =
his=20
recommendation to suspend the veterinarians =
indefinitely was =E2=80=9Cappropriate=E2=80=9D =
because a 1975 court=20
order,
to which the City and BARC had =
agreed,=20
=E2=80=9Cexpressly state[d]=E2=80=9D that the City and BARC =
had
a specific and certain public duty to =
handle and=20
maintain such animals impounded [by BARC] or animals being picked =
up or=20
carried to said facility by individuals under [BARC=E2=80=99s] =
supervision and=20
employ or at their direction, in a manner such as to avoid any =
act,=20
omission or neglect which causes any unnecessary or unjustifiable =
pain or=20
suffering or permits or allows such pain and suffering to continue =
when=20
there is a reasonable remedy.
Nix also relied on another provision of =
the agreed=20
order that provided:
[T]hat all persons in supervisory =
positions at=20
[BARC] take appropriate steps to discharge any persons whose =
actions or=20
failure to perform their assigned duties in a reasonably efficient =
manner=20
results in the inability of [BARC] to effectively implement this=20
order.
<=
/SPAN>Simmons testified that Nix had ordered him to =
investigate=20
the death of the female Rottweiler, but not the death of the Great =
Dane.=20
After interviewing several witnesses, including kennel attendants =
and the=20
veterinarians, Simmons learned that the Rottweiler and her nine =
puppies=20
had been delivered to BARC on April 28, 1999. Two kennel =
attendants told=20
Simmons that on April 30, they told Levingston that the dog was =
bleeding,=20
and he told them to inform Dr. Abigail Arredondo
to examine the dog. Another =
kennel=20
attendant told Simmons that, on May 2, he told Hanna of the =
dog=E2=80=99s=20
condition. Hanna treated the dog for diarrhea with an oral =
medication and=20
contacted the owner, who told Hanna that he would pick up the dog =
and the=20
puppies on May 3. Another kennel attendant told Simmons that, on =
May 3,=20
the dog was bleeding, and he notified Hanna, who examined the dog =
and told=20
Rollins that the owner was supposed to pick up the dog. Hanna told =
Simmons=20
that, on May 4, he observed the dog to be =E2=80=9Cnormal, alert =
and moving=20
around,=E2=80=9D and he again tried to contact the owner. =
<=
/SPAN>On=20
May 6, a kennel attendant informed Nix that he should take a look =
at the=20
dog. Nix directed Levingston to treat the dog. Levingston treated =
the dog=20
with subcutaneous fluids and tried to contact the owner. A kennel=20
attendant found the dog dead in its pen the next morning, and the=20
remaining puppies had to be euthanized. Hanna informed Nix that =
the only=20
treatment for the dog=E2=80=99s condition would have been a =
hysterectomy, but the=20
owner would have had to agree to the surgery.
<=
/SPAN>In=20
his June 2 report, Simmons concluded that the evidence indicated =
that=20
=E2=80=9Cmembers of the clinic staff were negligent and derelict =
by failing to=20
follow up on the dog in question even after they were aware of the =
dog=E2=80=99s=20
condition for at least six days.=E2=80=9D Simmons, who is not a =
veterinarian,=20
opined that the =E2=80=9Cveterinarians failed to ensure the animal =
was treated in=20
a manner which would have provided it an opportunity to survive =
its=20
illness=E2=80=9D and the =E2=80=9Canimal was left to suffer for a =
period of over 24 hours=20
due to a lack of examination and treatment.=E2=80=9D
<=
/SPAN>Simmons=20
testified that although he had =E2=80=9Cgenerally=E2=80=9D heard =
from within BARC that=20
Levingston had made complaints about the treatment of animals at =
BARC, the=20
first time that Simmons became aware that Levingston had =
communicated his=20
complaints to Nix was on August 5, 1999, when Simmons found, in =
the=20
doorway of Nix=E2=80=99s office, one of=20
Levingston=E2=80=99s written reports complaining of a lack of food =
and water for=20
certain animals. Although Nix testified that he had asked Simmons =
to=20
investigate Levingston=E2=80=99s allegations of animal abuse at =
BARC, Simmons=20
testified that
Nix never =E2=80=9Casked [Simmons] to =
look into inhumane=20
treatment of animals as alleged by Levingston.=E2=80=9D Simmons =
explained that in=20
his 18 years of experience at BARC, he had never been asked to =
investigate=20
animal abuse and neglect by a kennel attendant or clinical staff. =
In fact,=20
Levingston=E2=80=99s was the first instance of which he was aware =
involving a BARC=20
investigation into a clinic staff member=E2=80=99s treatment of an =
animal.=20
Although Simmons had investigated between 20 and 25 instances of=20
mistreatment of animals by animal control officers, he found some =
evidence=20
of mistreatment in only three cases, and none of the animal =
control=20
officers involved in the =
instances=20
were indefinitely suspended.
<=
/SPAN>The=20
Great Dane, to which Kendrick=E2=80=99s letter referred, was =
admitted to BARC and=20
placed in quarantine for suspicion of rabies because it had bitten =
a=20
United States Postal Carrier. Dr. Jesus Martinez,
a veterinary technician =
supervisor,=20
testified that he told Levingston on July 22, 1999 that the dog =
=E2=80=9Cwas=20
foaming from the mouth=E2=80=9D and that he noticed =E2=80=9Ca lot =
of vomit around the=20
mouth and going down to the . . . legs.=E2=80=9D Although Martinez =
expected=20
Levingston =E2=80=9Cto check=E2=80=9D the dog, Levingston told him =
that the dog was=20
=E2=80=9Cokay.=E2=80=9D The dog died the following day. On July =
23, 1999, Nix reported the=20
death of the Great Dane to Payne and stated:
The dog exhibited some signs of illness =
yesterday=20
but did not appear to be in a condition which would cause its =
death last=20
night. A veterinarian examined the animal yesterday and found no =
cause for=20
alarm as to rabies.
Subsequent=20
testing revealed that the dog was not rabid. However, based on =
Martinez=E2=80=99s=20
representations, Nix, on July 26, 1999, wrote another memorandum =
to Payne=20
stating that Levingston =E2=80=9Cdid not personally examine the =
dog=E2=80=9D and that=20
there =E2=80=9Cwas no treatment given the dog.=E2=80=9D He also =
noted that Levingston =E2=80=9Cdid=20
not speak with the owner to tell him that the dog had died and the =
owner=20
came to BARC late in the afternoon to reclaim the dog.=E2=80=9D =
Nix concluded that=20
Levingston=E2=80=99s =E2=80=9Cfailure to follow procedure caused =
undue stress and=20
discomfort to employees at BARC who are not responsible to advise =
the=20
owner of such a death.=E2=80=9D In his trial testimony, Nix =
conceded that he had=20
=E2=80=9Czero evidence of wrongdoing against Levingston that he in =
any way, shape=20
or form caused the death of the Great Dane.=E2=80=9D=20
<=
/SPAN>Kendrick, who was a medical doctor and =
not a=20
veterinarian, testified that she sent the September 1, 1999 =
letters to=20
Hanna and Levingston to advise them that it had been recommended =
that=20
their employment be terminated and to give them a chance to =
respond to the=20
charges against them in a Loudermill
hearing set for September 17, =
1999. Due to=20
medical complications associated with his receipt of the=20
letter, =
Levingston=E2=80=99s hearing was=20
postponed until January 7, 2000. After Hanna=E2=80=99s September =
17 hearing,=20
Kendrick recommended to then Mayor Lee P. Brown that Hanna be =
indefinitely=20
suspended. Hanna then chose to retire in lieu of being =
indefinitely=20
suspended.
<=
/SPAN>In=20
late October 1999, the City hired Dr. Nick DeWees to write a =
report about=20
the deaths of the Rottweiler and the Great Dane. DeWees testified =
that he=20
obtained his degree in veterinary medicine and became a licensed=20
veterinarian in May of 1998. In his=20
report to Kendrick, dated November 15, 1999, DeWees =
stated:
The information provided to me =
concerning Dr.=20
Levingston=E2=80=99s management of the female Rottweiler, with =
vaginal bleeding,=20
in my opinion showed gross neglect for animal welfare. . . . [The =
dog] was=20
not appropriately attended to. Simple laboratory tests, such as a=20
hematocrit or total serum protein, could have identified if this =
dog was=20
suffering from severe blood loss from either the reproductive =
tract or the=20
gastrointestinal tract. . . . [T]his dog in my opinion had a =
severe=20
medical condition and was in moderate pain and could have been =
justifiably=20
euthanized prior to May 6, 1999. The second course of action would =
have=20
been to institute the medical care and diagnostics necessary to =
safeguard=20
the dog=E2=80=99s well being until the dog was better or the owner =
specifically=20
refused such treatment. . . . Post-partum bleeding of this =
magnitude=20
should have alerted a reasonably trained veterinarian of the =
potential for=20
a retained fetus, retained fetal membranes, or a ruptured uterus. =
. . . If=20
the discharge was thought to be fecal in origin then why was the =
dog not=20
tested for Parvoviral enteritis?
In regard to the Great Dane, DeWees=20
stated:
Examining an animal through a fence does =
not allow=20
one to accurately assess what type of problem the dog may have.=20
Potentially the dog had a Bordatella or a Parainfluenza =
infection,=20
which leads to =E2=80=9CKennel Cough.=E2=80=9D This is a very =
common problem in animal=20
containment facilities. . . . [Regarding Dr. Levingston=E2=80=99s =
concern about] a=20
twisted intestine, which is more correctly known as gastric =
dilation and=20
volvulus or GDV, . . . GDV can be easily diagnosed and if =
diagnosed in=20
time surgery can be life saving. A diagnosis of GDV is made =
definitively=20
by taking a radiograph of the abdomen. Given a good physical exam, =
knowing=20
the breed and clinical symptoms a diagnosis can be frequently made =
without=20
radiographs.
DeWees=20
concluded:
The management of the Rottweiler can =
definitely be=20
seen as malpractice and could be subject to civil and state =
regulatory=20
action if it occurred in private practice. . . . Failure to give =
the Great=20
Dane a physical examination is evidence of =
negligence.
<=
/SPAN>.=20
. . .
These incidents, coupled with past =
disciplinary=20
actions, certainly warrant strong disciplinary action now. If =
these events=20
were to take place in my hospital or any of my colleague=E2=80=99s =
hospitals I=20
feel the proposed disciplinary action would be similar to that =
given in=20
the private sector.
<=
/SPAN>Kendrick=20
testified that she conducted Levingston=E2=80=99s =
Loudermill hearing on=20
January 7, 2000 and then recommended=20
to Mayor Brown that Levingston=E2=80=99s employment be terminated. =
In her testimony, Kendrick conceded that =
it was=20
=E2=80=9Cmost likely=E2=80=9D that Levingston=E2=80=99s employment =
would not have been terminated=20
but for Nix=E2=80=99s recommendation of indefinite suspension. =
<=
/SPAN>In=20
his March 23, 1999 letter informing Levingston of his indefinite=20
suspension from BARC, Mayor Brown, apparently relying heavily on =
DeWees=E2=80=99s=20
report, specifically noted, in regard to the Rottweiler, that =
[Levingston] never ordered or requested =
any=20
laboratory tests, even those normally indicated for any =
post-partum animal=20
with a medical problem. . . . [I]t was Dr. Levingston=E2=80=99s =
duty and=20
responsibility to timely and appropriately order treatment or =
euthanasia=20
for the animal.
In regard to the Great Dane, Mayor Brown =
noted:
A visual assessment of an animal through =
a fence=20
or a pen does not allow one to accurately assess what type of =
problem an=20
animal may have. It certainly does not allow a dog to be examined =
for a=20
Bordatella or Parainfluenza infection which can lead to =
=E2=80=9CKennel Cough.=E2=80=9D=20
Kennel Cough is a common problem with large dogs in animal =
containment=20
facilities.
Mayor Brown explained that =
Levingston=E2=80=99s actions=20
violated the City=E2=80=99s policy that employees =E2=80=9Cgive a =
productive day=E2=80=99s work=20
to the best of their =
abilities=20
and skills.=E2=80=9D He also explained that =
Levingston=E2=80=99s actions violated=20
various provisions of =E2=80=9Cthe Texas Administrative Code =
governing the Rules=20
of Professional conduct for Veterinarians as established by the =
Texas=20
State Board of Veterinary Medical Examiners.=E2=80=9D In regard to =
the=20
Loudermill hearing, Mayor Brown concluded that because =
Levingston=E2=80=99s=20
explanations to Kendrick were =E2=80=9Cnot satisfactory=E2=80=9D =
and because =E2=80=9Cprevious=20
disciplinary actions have failed to correct his unacceptable and=20
unprofessional conduct,=E2=80=9D Kendrick =E2=80=9Cwas left with =
no alternative=E2=80=9D but to=20
=E2=80=9Crecommend infinite suspension for Levingston. I concur =
with this=20
recommendation.=E2=80=9D
&=
nbsp;On=20
March 30, 2000, Levingston appealed to the Civil Service =
Commission for=20
Municipal Employees, which, on April 13, 2000, upheld the =
indefinite=20
suspension. Levingston then filed this lawsuit on May 19, 2000. =
Kendrick=20
reported Levingston=E2=80=99s conduct in regard to the Rottweiler =
and the Great=20
Dane to the Texas State Board of Veterinary Medical Examiners, =
which=20
closed the case with =E2=80=9Cno violations found.=E2=80=9D =
<=
/SPAN>The=20
jury found that Levingston=E2=80=99s reports to BARC =E2=80=9Cof =
torture, unreasonable=20
failure to provide necessary food or care, and/or transport or =
confinement=20
in a cruel manner of animals in the custody of the City of =
Houston=E2=80=9D were=20
made =E2=80=9Cin good faith=E2=80=9D and were =E2=80=9Ca cause of =
the City of Houston=E2=80=99s=20
terminating his employment when it did.=E2=80=9D The jury awarded =
Levingston=20
$116,500 for past lost wages, $250,000 for future lost wages, =
$500,000 for=20
past compensatory damages, and $375,000 for future compensatory =
damages.=20
<=
/SPAN>The=20
City filed an amended motion for judgment notwithstanding the=20
verdict, contending that =
Levingston=20
did not report a violation of law, did not make a report to an =
appropriate=20
law enforcement authority, produced no evidence that his alleged =
reports=20
caused his adverse employment action, and produced no evidence to =
support=20
the jury=E2=80=99s award on mental-anguish damages or its award =
for future=20
pecuniary losses. The City also argued that the trial court erred =
in=20
denying its proposed jury instruction on its affirmative defense.=20
<=
/SPAN>After=20
a hearing to determine the =E2=80=9Cproductivity=E2=80=9D of =
reinstating Levingston,=20
the trial court, in its =
final=20
judgment, awarded Levingston $235,000 as the =E2=80=9Cvalue of =
reinstatement=E2=80=9D to=20
his =E2=80=9Cformer position or an equivalent position, fringe =
benefits and=20
seniority rights lost because of the termination.=E2=80=9D It also =
awarded Levingston $116,500 for past =
lost wages,=20
=E2=80=9Ccompensatory damages capped at the amount of =
$250,000,=E2=80=9D $194,107.50 for=20
attorneys=E2=80=99 fees, and $12,796.58 for court costs. The trial =
court further=20
awarded Levingston prejudgment interest =E2=80=9Con the amount of =
$365,500=E2=80=9D and=20
post-judgment interest on the entire amount of the judgment. =
Standard of=20
Review
=
A=20
trial court may =E2=80=9Cdisregard any jury finding on a question =
that has no=20
support in the evidence=E2=80=9D and render a judgment =
nothwithstanding a jury=E2=80=99s=20
verdict =E2=80=9Cif a directed verdict would have been =
proper.=E2=80=9D Tex. R. Civ. =
P. 301. In regard=20
to the City=E2=80=99s no-evidence issues,
we note that when =
a party=20
without the burden of proof challenges the legal sufficiency of =
the=20
evidence, we consider all of the evidence in the light most =
favorable to=20
the prevailing party, indulging every reasonable inference in that =
party=E2=80=99s=20
favor. Associated Indem. =
Corp. v.=20
CAT Contracting, Inc., 964 S.W.2d 276, =
285=E2=80=9386=20
(Tex. 1998);=20
Ned v. E.J.=20
Turner & Co., 11 S.W.3d 407, =
408 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2000, pet. =
denied). If there=20
is more than a scintilla of =
evidence to=20
support the challenged finding, we must uphold it. Formosa Plastics =
Corp. USA=20
v. Presidio Eng=E2=80=99rs & Contractors, Inc., 960 S.W.2d 41, 48 =
(Tex.=20
1998). When the evidence offered to prove a vital fact is so weak =
as to do=20
no more than create a mere surmise or suspicion of its existence, =
the=20
evidence is no more than a scintilla and, in legal effect, is no =
evidence.=20
Ford Motor=20
Co. v. Ridgway, 135 S.W.3d 598, =
601 (Tex.=20
2004) (quoting Kindred v. Con/Chem, =
Inc., 650 S.W.2d 61, 63 =
(Tex.=20
1983)). However, if the =
evidence=20
supplies some reasonable basis for differing conclusions by =
reasonable=20
minds as to the existence of a vital fact, then there is legally=20
sufficient evidence. King Ranch, Inc. =
v.=20
Chapman,=20
118 S.W.3d 742, 751 (Tex. 2003).
=
; =
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
&=
nbsp; &n=
bsp; =
Texas=20
Whistleblower Act
<=
/SPAN>In=20
its first and second issues, the City argues that the trial court =
erred in=20
denying its motion for judgment notwithstanding the verdict =
because Dr.=20
Levingston produced no evidence in support of the jury=E2=80=99s =
findings that (1)=20
Levingston made a report of what he believed, in good faith, was a =
violation of law to an appropriate law enforcement authority and =
(2) this=20
was a cause of the City=E2=80=99s termination of his =
employment.
<=
/SPAN>The=20
Texas Whistleblower Act (=E2=80=9Cthe Act=E2=80=9D) is designed to =
enhance openness in=20
government and to compel the government=E2=80=99s compliance with =
law by=20
protecting those who inform authorities of wrongdoing. See =
Davis v.=20
Ector County, 40 F.3d 777, 785 (5th Cir. 1994) (quoting Castaneda v. Tex. =
Dep=E2=80=99t of=20
Agric., 831 S.W.2d 501, 503 (Tex. App.=E2=80=94Corpus Christi =
1992, writ=20
denied)). The Act evidences two legislative purposes: (1) to =
protect=20
public employees from retaliation by their employer when, in good =
faith,=20
employees report a violation of the law and (2) in consequence, to =
secure=20
lawful conduct on the part of those who direct and conduct the =
affairs of=20
public bodies. Travis County v. Colunga, 753 S.W.2d 716, =
718=E2=80=9319=20
(Tex. App.=E2=80=94Austin 1988, writ denied). Because the Act is =
remedial in=20
nature, it should be liberally construed to effect its purpose.=20
Castaneda, 831 S.W.2d at 503; Davis, 40 F.3d at=20
785.
<=
/SPAN>The=20
Act provides, in pertinent part, as follows:
(a)A State or local governmental entity =
may not=20
suspend or terminate the employment of, or take other adverse =
personnel=20
action against, a public employee who in good faith reports a =
violation of=20
law by the employing governmental entity or another public =
employee to an=20
appropriate law enforcement authority.
(b)In this section, a report is made to =
an=20
appropriate law enforcement authority if the authority is part of =
a state=20
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=20
violated in the report; or
(2)investigate or prosecute a violation =
of=20
criminal law.
Tex. Gov=E2=80=99t=20
Code Ann. =C2=A7 554.002 (Vernon 2004).
Good-Faith=20
Belief
<=
/SPAN> In=20
its first issue, the City contends that Levingston failed to prove =
that =E2=80=9Ca=20
reasonably prudent veterinarian would have a good-faith =
belief=E2=80=9D that he=20
reported a violation of law to an appropriate law enforcement =
authority.=20
It asserts that in denying its motion for judgment notwithstanding =
the=20
verdict, the trial court misinterpreted the precedent of Texas=20
Department of Transportation v. Needham, 82 S.W.3d 314, =
320=E2=80=9321 (Tex.=20
2002) and Wichita County =
v.=20
Hart, 917 S.W.2d 779, 784 (Tex. 1996).
<=
/SPAN>In=20
regard to subsection (a) of section 554.002, the Texas Supreme =
Court held=20
in Hart that =E2=80=9C=E2=80=98good faith=E2=80=99 means =
that (1) the employee believed=20
that the conduct reported was a violation of law and (2) the =
employee=E2=80=99s=20
belief was reasonable in light of the employee=E2=80=99s training =
and experience.=E2=80=9D=20
917 S.W.2d at 784. The test=E2=80=99s first element=E2=80=94the =
=E2=80=9Chonesty in fact=E2=80=9D=20
element=E2=80=94ensures that an employee seeking a Whistleblower =
remedy believed=20
that he was reporting an actual violation of the law. Id. =
at=20
784=E2=80=9385. The test=E2=80=99s second element ensures that, =
even if the reporting=20
employee honestly believed that the reported act was a violation =
of law,=20
the reporting employee receive the Act=E2=80=99s protection only =
if a reasonably=20
prudent employee in similar circumstances would have believed that =
the=20
facts as reported were a violation of the law. Id. at 785. =
Thus,=20
the Hart test includes both a subjective and objective =
element.=20
The Texas =
Supreme=20
Court subsequently concluded in Needham that the same test =
applies=20
to determine, under subsection (b) of section 554.002, if a public =
employee in good faith believed that the governmental entity to =
which he=20
reported a violation of law was an appropriate law enforcement =
authority.=20
82 S.W.3d at 320=E2=80=9321. Thus, in the context of section =
554.002(b), =E2=80=9Cgood=20
faith=E2=80=9D means that
(1)the employee believed the =
governmental entity=20
was authorized to (a) regulate under or enforce the law alleged to =
be=20
violated in the report, or (b) investigate or prosecute a =
violation of=20
criminal law; and
(2)the employee=E2=80=99s belief was =
reasonable in light=20
of the employee=E2=80=99s training and experience.
Id. at 321.
<=
/SPAN>Violation of =
Law
<=
/SPAN>The=20
City first argues, under Hart, that because of =
Levingston=E2=80=99s=20
=E2=80=9Ctraining as a licensed Veterinarian and his 40 years of =
experience, it=20
was not reasonable for him to believe that his complaints to Nix =
that the=20
animals were not being fed, watered, and handled properly; that =
the kennel=20
master was not doing his job; and that kennel employees needed to =
carry=20
out their duties was a violation of any law, let alone the =
animal=20
cruelty statute.=E2=80=9D (Emphasis added.) It asserts that =
=E2=80=9Cas a=20
veterinarian,=E2=80=9D Levingston knew that =E2=80=9Cjust because =
an animal=E2=80=99s food or=20
water dish was empty, at any given time, and in that one =
occurrence, was=20
not an indication of animal cruelty.=E2=80=9D
<=
/SPAN>Relying=20
on City of Houston v. Kallina, 97 S.W.3d 170, 175 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 2002), the City asserts that in making the complaints, =
Levingston=20
was merely doing his job because he, =E2=80=9Clike Kallina, had a =
duty to report=20
mistreatment of animals.=E2=80=9D Kallina, however, does =
not support the=20
City=E2=80=99s argument that Levingston produced no evidence in =
support of the=20
jury=E2=80=99s finding that he made a report of what he believed, =
in good faith,=20
was =E2=80=9Ca violation of =
any law.=E2=80=9D=20
In the portion of =
Kallina=20
cited by the City, the court was concerned with whether an =
employee=E2=80=99s=20
=E2=80=9Creporting violations of the City=E2=80=99s inventory =
procedures=E2=80=9D entitled him to=20
protection under the Act. 97 S.W.3d at 174. The court noted that =
the=20
employee pointed to no City ordinances that were violated, but, =
rather,=20
relied on two City policy manuals that, he asserted, contained =
=E2=80=9Crules=20
adopted under an ordinance.=E2=80=9D In concluding that the =
employee was not=20
entitled to the Act=E2=80=99s protection, the court explained that =
it was =E2=80=9Cquite=20
clear that these manuals (and the hundreds of pages they contain) =
reflect=20
internal policies rather than rules promulgated pursuant to an =
ordinance.=E2=80=9D=20
Id. at 175.
<=
/SPAN>Although,=20
as pointed out by the City, Levingston testified that his =
complaints did=20
concern employee performance failures and that he wanted Nix to =
take=20
corrective action, he further testified that =
=E2=80=9C[i]t=E2=80=99s against the law to=20
treat the animals inhumanely=E2=80=9D and that he, as a senior =
veterinarian at=20
BARC, had occasions =E2=80=9Cto investigate animal abuse with a =
team from BARC.=E2=80=9D=20
Specifically, Levingston notes that his reports to Nix concerned =
the=20
violation of certain provisions of the Houston City Code, the =
Texas Penal=20
Code, and the Texas Health and Safety Code.
<=
/SPAN>It is important to note that the very =
city=20
ordinance that concerns the responsibilities of the City=E2=80=99s =
Department of=20
Health and Human Services and BARC in regard to animals and fowl =
states=20
that
[e]very . . . caretaker . . . of any =
animal within=20
the city limits shall be required to observe the following rules,=20
regulations, terms and conditions in connection with the care, =
keeping and=20
using of such animals, and any person violating any provisions =
hereof=20
shall be deemed guilty of an offense:
(1) All stables or other enclosures in =
which such=20
animal is kept and the ground upon which same is situated shall be =
kept=20
and maintained in a clean and sanitary condition, and all stables =
and=20
fences surrounding such lot where the animal is kept and the feed =
troughs=20
and water troughs, with which such animals are fed and watered, =
shall be=20
free from any projection or thing whereon or whereby such animal =
may be=20
injured.
(2) All animals shall be fed with a =
quantity of=20
good, wholesome food sufficient to keep them in a good, =
well-nourished=20
condition, and such food shall be served to such animals in a =
clean,=20
sanitary manner.
&=
nbsp; .=20
. . .
(9) All animals shall be provided with =
pure, clean=20
water in sufficient quantities at all times.
Houston,=20
Tex., Ordinances ch. =
6, art.=20
I., =C2=A7 6-6 (1), (2), (9) (emphasis added). The City Code further provides =
that
[t]he violation of any provision of this =
chapter 6=20
is hereby declared to be unlawful. Unless another penalty is =
expressly=20
applicable as provided in any section or subsection hereof, then a =
violation shall be punishable as provided in section 1-6 of this =
Code and=20
the provisions of section 1-6 are expressly invoked for such =
purpose.=20
Id. ch. 6, art. I., =C2=A7 =
6-1(c). Section 1-6(a) =
provides that=20
=E2=80=9Cthe violation of any such provision of this Code or any =
such ordinance=20
shall be punished by a fine not exceeding $500.=E2=80=9D=20
Id. ch. 1, =
=C2=A7 1-6(a).=20
Many of =
Levingston=E2=80=99s reports to Nix=20
against BARC employees, including those reports concerning the =
deprivation=20
of food and water, the rationing of food, and the placement of =
animals in=20
unsafe conditions in which they were injured or killed, concerned =
the=20
violation of the above cited provisions of the City =
Code.
<=
/SPAN>Also,=20
the Texas Penal Code prohibits much of the conduct that Levingston =
reported to Nix. The Penal Code provides, in pertinent part, that =
a person=20
commits the offense of =E2=80=9CCruelty to Animals=E2=80=9D if the =
person intentionally or=20
knowingly
(1) tortures an animal;
(2) fails unreasonably to provide =
necessary food,=20
care, or shelter for an animal in the person=E2=80=99s =
custody;
. . . .
(4) transports or confines an animal in =
a cruel=20
manner;
(5) kills [or] seriously injures . . . =
an animal .=20
. . belonging to another without legal authority or the =
owner=E2=80=99s effective=20
consent;
(6) causes an animal to fight with=20
another;
. . . .
(9) injures an animal . . . without =
legal=20
authority or the owner=E2=80=99s effective consent.
Tex. Pen.=20
Code Ann. =C2=A7 42.09(a) (Vernon Supp. 2005). The term =
=E2=80=9Ccruel manner=E2=80=9D=20
includes =E2=80=9Ca manner that causes or permits unjustified or =
unwarranted pain=20
or suffering.=E2=80=9D Id. =C2=A7=20
42.09(c)(3). =E2=80=9CNecessary food, care,=20
or shelter=E2=80=9D includes =E2=80=9Cfood, care, or shelter =
provided to the extent=20
required to maintain the animal in a state of good =
health.=E2=80=9D=20
Id. =C2=A7 42.09(c)(5). An =
offense under=20
subsection (a)(2), (4), or (9) is a Class A misdemeanor.=20
Id. =C2=A7 42.09(d). An =
offense under=20
subsection (a)(1), (5), or (6) is a state jail felony.=20
Id. =C2=A7 42.09(i). =
Many of Levingston=E2=80=99s complaints =
to Nix against=20
BARC employees concerned violations of the above provisions of the =
Penal=20
Code, including those involving the deprivation of food, the =
rationing of=20
food, and the placement of animals in unsafe conditions in which =
they were=20
injured, caused to fight over food, or killed. His report of =
transporting=20
animals in BARC trucks with defective air conditioners concerned=20
violations of subsection (4). Levingston=E2=80=99s allegations =
about kennel=20
attendants=E2=80=99 holding the heads of animals under dip, =
jerking dogs off of=20
BARC trucks creating =E2=80=9Cpainful breaks,=E2=80=9D pitching =
puppies =E2=80=9Clike a baseball=20
from the truck to the holding pen,=E2=80=9D and killing cats =
=E2=80=9Cin burlap sacks by=20
throwing them under the back wheels of a truck=E2=80=9D concerned =
torture under=20
subsection (1) and, in regard to the cats, killing under =
subsection=20
(5).
<=
/SPAN>Moreover, in regard to the treatment of =
=E2=80=9Cimpounded=20
animals,=E2=80=9D the Texas Health and Safety Code requires =
=E2=80=9Ca person who impounds=20
or causes the impoundment of an animal under state law or =
municipal=20
ordinance=E2=80=9D to =E2=80=9Csupply the animal with sufficient =
wholesome food and water=20
during its confinement.=E2=80=9D Tex.=20
Health & Safety Code Ann. =C2=A7 821.002(a) (Vernon =
2003).=20
If such an impounded animal =
=E2=80=9Ccontinues to be without necessary food or water for more =
than 12=20
successive hours, any person may enter the pound . . . as often as =
necessary to supply the animal with necessary food and =
water.=E2=80=9D=20
Id. =C2=A7 =
821.002(b). In regard to=20
the disposition of cruelly treated animals, an =E2=80=9Cofficer =
who has=20
responsibility for animal control in a county or =
municipality=E2=80=9D who has=20
reason to believe that an animal is being =E2=80=9Ccruelly =
treated,=E2=80=9D may apply to=20
a justice court or a municipal court for a warrant to seize the =
animal.=20
Id. =C2=A7 =
821.022(a) (Vernon Supp.=20
2005). The statute states that the term =E2=80=9Ccruelly =
treated=E2=80=9D includes=20
=E2=80=9Ctortured, . . . unreasonably deprived of necessary food, =
care, or=20
shelter, cruelly confined, or caused to fight with another =
animal.=E2=80=9D=20
Id. =C2=A7 821.021 (Vernon 2003). Here, Levingston=E2=80=99s reports to Nix =
about the deprivation=20
of food and water and the rationing of food concerned the =
violation of=20
section 821.002. Also, under their regulatory and enforcement =
function,=20
the City=E2=80=99s animal control officers, under section 821.022, =
may obtain a=20
warrant to seize =E2=80=9Ccruelly treated=E2=80=9D animals. =
<=
/SPAN>Just=20
because many of Levingston=E2=80=99s reports to Nix =
=E2=80=9Cconcerned employee=20
performance failures=E2=80=9D does not mean that his reports of =
the above cited=20
instances did not concern =E2=80=9Ca violation of any =
law.=E2=80=9D The Act defines=20
=E2=80=9C[l]aw=E2=80=9D as
(A) a state or federal =
statute;
(B) an ordinance of a local governmental =
entity;=20
or
(C) a rule adopted under a statute or=20
ordinance.
Tex. Gov=E2=80=99t=20
Code Ann. =C2=A7 554.001(1) (Vernon 2004). A criminal or =E2=80=9Cpenal=E2=80=9D =
statute or law is =E2=80=9C[a] law=20
that defines an offense and prescribes its corresponding fine, =
penalty, or=20
punishment.=E2=80=9D Black=E2=80=99s Law=20
Dictionary 1421 (7th ed. 1999). Most of the conduct described by =
Levingston=20
constituted violations of criminal law. He testified that the =
conduct was=20
against the law and that he, as a BARC senior veterinarian, had=20
participated in the investigation of animal-abuse allegations with =
other=20
BARC employees. Here, the pertinent provisions of the Penal Code =
and the=20
City Code, which provide that =E2=80=9Cany person violating any =
provisions hereof=20
shall be deemed guilty of an offense=E2=80=9D and assesses a fine =
of up to $500,=20
are =E2=80=9Ccriminal laws=E2=80=9D under the Act. Moreover, the =
above pertinent=20
provisions of the Health and Safety Code, concerning the treatment =
and=20
disposition of animals, implicate the regulatory and enforcement =
functions=20
of BARC=E2=80=99s animal control officers.
<=
/SPAN>We conclude that the City=E2=80=99s =
arguments that (1) it=20
was not reasonable for Levingston to believe that his complaints =
to Nix=20
about animal abuse at BARC concerned the violation of any law and =
that (2)=20
Levingston failed to prove that =E2=80=9Ca reasonably prudent =
veterinarian would=20
have a good-faith belief=E2=80=9D that he reported a =
=E2=80=9Cviolation of any law=E2=80=9D=20
are without merit. =
Levingston=20
satisfied both the objective and subjective elements of the =
Hart=20
test. See 917 S.W.2d =
at=20
784=E2=80=9385. Accordingly, we hold that the evidence =
is legally=20
sufficient to support the jury=E2=80=99s implied findings that =
Levingston, in good=20
faith, believed that the conduct that he reported to Nix was a =
violation=20
of criminal law and also implicated the regulatory and enforcement =
function of BARC and that his belief was reasonable in light of =
his=20
training and experience.
<=
/SPAN>Appropriate Law Enforcement=20
Authority
=
; The=20
City next argues, under Needham, that because of =
Levingston=E2=80=99s=20
education and 40 years of veterinary experience, =E2=80=9Cit is =
simply not=20
objectively reasonable=E2=80=9D that he, in good faith, believed =
that BARC had=20
=E2=80=9Cpolice or enforcement powers.=E2=80=9D It=20
contends that there was no evidence that Levingston=E2=80=99s =
=E2=80=9Creport of a=20
violation of the Penal Code to John Nix met the objective =
component of the=20
definition of good faith under the Act=E2=80=9D and that there was =
=E2=80=9Cno credible=20
evidence presented to the jury that a senior veterinarian would =
have an=20
objective good faith belief that BARC was an appropriate law =
enforcement=20
authority for the report of a violation of the penal =
code.=E2=80=9D
<=
/SPAN>We=20
note at the outset that the Act does not apply only to reports of =
criminal=20
offenses under the Texas Penal Code. Under the Act, an appropriate =
law=20
enforcement authority is a governmental entity authorized to =
=E2=80=9Cregulate=20
under or enforce the law alleged to be violated.=E2=80=9D Tex. Gov=E2=80=99t Code =
Ann. =C2=A7=20
554.002(b)(1) (Vernon 2004); Needham, 82 S.W.3d at 320.=20
Alternatively, an appropriate law enforcement authority is a =
governmental=20
entity authorized to =E2=80=9Cinvestigate or prosecute a violation =
of criminal=20
law.=E2=80=9D Tex. =
Gov=E2=80=99t Code Ann. =C2=A7=20
554.002(b)(2); Needham, 82 S.W.3d at 319. It is not enough =
that a=20
governmental entity has general authority to regulate, to enforce, =
to=20
investigate, or to prosecute. Needham, 82 S.W.3d at 319. =
Rather,=20
the governmental entity must be authorized either to (1) regulate =
under or=20
to enforce =E2=80=9Cthe law alleged to be violated=E2=80=9D or (2) =
investigate or to=20
prosecute =E2=80=9Ca violation of criminal law.=E2=80=9D =
Id. at 320. Thus, we must=20
determine whether BARC had the authority to regulate under, to =
enforce, to=20
investigate, or to prosecute the reported violations of the City =
Code, the=20
Texas Penal Code, and the Health and Safety Code. Id. at=20
320.
<=
/SPAN>In=20
support of its arguments, =
the City=20
again asserts that Levingston was merely =E2=80=9Ccomplaining to a =
supervisor that=20
employees were not performing their duties, a complaint targeted =
to=20
initiate corrective action or discipline.=E2=80=9D It also asserts that Levingston =
=E2=80=9Cknew that BARC=20
did not prosecute complaints of animal cruelty,=E2=80=9D and it =
refers us to the=20
testimony of Earl Travis, the Deputy Director of the =
City=E2=80=99s Department of=20
Health and Human Services and former Division Manager of BARC, who =
stated=20
generally that BARC could not =E2=80=9Cenforce=E2=80=9D section =
42.09 of the Texas Penal=20
Code. The City asserts that
BARC is not, nor could it ever be =
considered, a=20
law enforcement authority. It is disingenuous for Levingston to =
even=20
suggest that it was.
<=
/SPAN>This=20
representation, made in the City=E2=80=99s brief and repeated at =
oral argument, is=20
in direct contradiction to the testimony of Travis that =
=E2=80=9CBARC has law=20
enforcement responsibilities in animal related issues within the =
City of=20
Houston.=E2=80=9D Travis =
testified that BARC,=20
under Chapter 6 of the City Code, =E2=80=9Cwas charged, as an =
organization, with=20
enforcing animal ordinances.=E2=80=9D=20
<=
/SPAN>As=20
noted above, many of Levingston=E2=80=99s specific reports to Nix =
against BARC=20
employees, including those involving the deprivation of food and =
water,=20
the rationing of food, and the placement of animals in unsafe =
conditions=20
in which they were injured or killed, concerned violations of the =
City=20
Code. See Houston, =
Tex.,=20
Ordinances ch. 6, art. I, =C2=A7 6-6(1), (2), =
(9). Moreover, Section 6-19 of the City =
Code, titled=20
=E2=80=9CPowers of enforcement officers,=E2=80=9D states that =
=E2=80=9C[t]he health officer, the=20
animal control officers and other authorized employees of the =
[D]epartment=20
[of Health and Human Services] shall have all of the powers and =
authority of police officers to the extent only and no further =
of=20
enforcing this chapter and other ordinances of the city relating =
to=20
animals and fowl.=E2=80=9D Id. =C2=A7 6-19 (emphasis =
added). Section=20
6-20 of the City Code, titled =E2=80=9CNotice of =
violations,=E2=80=9D provides:
All duly appointed and qualified =
peace=20
officers, the animal control officers of the =
[D]epartment [of=20
Health and Human Services] =
. . . are=20
authorized to issue written citations to persons violating this =
chapter or=20
any other ordinance governing the regulation of =
animals.
Id. =C2=A7 6-20 (emphasis =
added). =
Accordingly, we hold that BARC was an appropriate law enforcement=20
authority under the Act to which to report a violation of =
sections =20
6-6(1), (2), and (9) of the City Code.
<=
/SPAN>In regard to Levingston=E2=80=99s =
assertions that many of=20
his complaints against BARC employees concerned violations of the =
Texas=20
Penal Code, the City states that =E2=80=9CBARC had no authority to =
and never=20
enforced the Penal Code regarding animal abuse or =
cruelty.=E2=80=9D It also=20
asserts that =E2=80=9C[n]o BARC Division Manager had ever and, =
further, was not=20
authorized to regulate, enforce, investigate or prosecute =
violations of=20
animal cruelty laws.=E2=80=9D We note, however, that section 6-20 of the City Code actually=20
contemplates the employment of =E2=80=9Cpeace officers=E2=80=9D by =
the Health and Human=20
Services Department, and it authorizes such =E2=80=9Cpeace =
officers=E2=80=9D and animal=20
control officers to issue citations for violations of Chapter 6.=20
Id. =C2=A7 6-20. All peace=20
officers have the duty =E2=80=9Cto preserve the peace within the =
officer=E2=80=99s=20
jurisdiction=E2=80=9D by =E2=80=9Call lawful means.=E2=80=9D Tex. Code Crim. Proc. Ann. =
art.=20
2.13(a) (Vernon 2005). All peace officers are also statutorily =
required,=20
=E2=80=9Cin every case=E2=80=9D authorized by the provisions of =
the Texas Penal Code, to=20
=E2=80=9Cinterfere without warrant to prevent or suppress =
crime=E2=80=9D and =E2=80=9Carrest=20
offenders without warrant in every case where the officer is =
authorized by=20
law.=E2=80=9D Id. art. 2.13(b)(1), (4). Peace officers must =
also =E2=80=9Cgive=20
notice to some magistrate of all offenses . . . where the officer =
has good=20
reason to believe=E2=80=9D there has been a violation of the Texas =
Penal Code.=E2=80=9D=20
Id. art. 2.13(b)(3). Thus, any peace officers actually =
employed by=20
BARC would be statutorily required to enforce section 42.09 of the =
Texas=20
Penal Code.
<=
/SPAN>Additionally, the very same 1975 court =
order upon=20
which Nix relied in making his recommendation to Kendrick that =
Levingston=20
be indefinitely suspended from BARC expressly states:
[t]hat all persons in supervisory =
positions at=20
[BARC] file charges under the appropriate provisions of the =
Criminal=20
Statutes of the State of Texas against any and all persons under =
their=20
supervision who are known by said supervisory persons, now or =
in the=20
future, to have violated such provisions of the Criminal Statutes =
of the=20
State of Texas while on the premises of [BARC] or while =
purportedly=20
performing their duties as employees of [BARC] no matter where =
such=20
actions take place, and that such supervisory persons shall =
give such=20
testimony as they may be required or able to give in all cases =
where=20
such charges are filed and that such supervisory persons shall =
do all=20
things reasonably within their power to see that such charges are=20
prosecuted.
(Emphasis added.) This order was agreed =
to and=20
signed by the City=E2=80=99s then =E2=80=9CSenior Assistant City =
Attorney.=E2=80=9D Not only did Nix, as Division Manager =
of BARC,=20
have the power to investigate such violations of the Texas Penal=20
Code by those under his =
supervision,=20
but he also had the legal duty to do so and to =E2=80=9Cfile =
charges=E2=80=9D and to=20
provide evidence against those persons. In fact, in his June 1, =
1999=20
memorandum to Levingston, Nix represented to Levingston that he =
was=20
=E2=80=9Cgreatly disturbed=E2=80=9D by Levingston=E2=80=99s =
allegations and that he had =E2=80=9Cinitiated=20
an investigation=E2=80=9D of the allegations =E2=80=9Cto initiate =
appropriate action=20
against parties who participate in such =
mistreatment.=E2=80=9D
<=
/SPAN>Accordingly,=20
we hold that BARC was an appropriate law enforcement authority =
under the=20
Act to report violations of section 42.09 of the Texas Penal Code=20
committed by BARC employees. Given Nix=E2=80=99s supervisory =
position over all of=20
BARC, he was certainly in the best position to receive such =
reports on=20
behalf of BARC.
<=
/SPAN>Finally, as noted above, section =
821.002(a) of the=20
Health and Safety Code specifically applies to employees of =
governmental=20
entities like BARC. It requires that all BARC employees =
=E2=80=9Csupply . . .=20
animal[s] with sufficient wholesome food and water during [their]=20
confinement.=E2=80=9D Tex. Health & Safety Code =
Ann.=20
=C2=A7 821.002(a). Nix, as BARC=E2=80=99s Division Manager, was =
obviously in the best=20
position to make sure that the employees working under him were in =
compliance with this statute. Also, as noted above, BARC=E2=80=99s =
animal control=20
officers, under their regulatory and enforcement function pursuant =
to=20
section 821.022, have the ability to obtain a warrant to seize any =
=E2=80=9Ccruelly treated=E2=80=9D animals. Accordingly, we hold =
that BARC was an=20
appropriate law enforcement authority under the Act to report =
violations=20
of sections 821.002 and 821.022 of the Health and Safety =
Code.
<=
/SPAN>Relying=20
on Kallina and City of Weatherford v. Catron, 83 =
S.W.3d 261=20
(Tex. App.=E2=80=94Fort Worth 2002, no pet.), the City asserts =
that Levingston, in=20
making his complaints to Nix, was merely doing his job, i.e., =
reporting=20
that BARC =E2=80=9Cemployees were not preforming their duties, a =
complaint=20
targeted to initiate corrective action or discipline.=E2=80=9D It =
also notes that=20
the statutory definition of =E2=80=9Can appropriate law =
enforcement authority=E2=80=9D=20
does not include =E2=80=9Can employer=E2=80=99s general power to =
investigate or power to=20
internally discipline its own employees for an alleged=20
violation.=E2=80=9D
<=
/SPAN>In=20
Catron, the court =
held, as a=20
matter of law, that the City of Weatherford was not an appropriate =
law=20
enforcement authority under section 554.002(b) of the Act for the=20
reporting of another employee=E2=80=99s violation of federal or =
state sexual=20
harassment laws. 83 S.W.3d at 268=E2=80=9369. It noted that the =
municipality=E2=80=99s=20
general authority to regulate under, to enforce, and to =
investigate claims=20
of sexual harassment was not enough to make it an appropriate law=20
enforcement authority under the Act. Id. at 268. The court =
also=20
noted that the plaintiff employee=E2=80=99s reports of harassment =
to the personnel=20
director and the utilities director =E2=80=9Call point[ed] to the =
municipality=E2=80=99s=20
internal discipline.=E2=80=9D Id. at 269. Thus, the court =
further held that=20
there was no evidence that the employee had a good-faith belief =
that the=20
municipality was an appropriate law enforcement agency for reports =
of=20
sexual harassment. Id.
<=
/SPAN>In=20
the portion of Kallina cited by the City as authority that =
BARC is=20
not an appropriate law enforcement authority for reports of animal =
abuse,=20
the court addressed the issue of whether the plaintiff =
employee=E2=80=99s=20
supervisor was a representative of an appropriate law enforcement=20
authority for a theft report. 97 S.W.3d at 172=E2=80=9373. The =
court noted that=20
the supervisor had the =E2=80=9Cauthority to investigate =
employees=E2=80=99 conduct and=20
carry out internal disciplinary procedures, but no authority to =
enforce=20
the theft laws of the state of Texas.=E2=80=9D Id. at 174. =
Because the=20
plaintiff employee =E2=80=9Cknew=E2=80=9D that the supervisor =
=E2=80=9Ccould only forward evidence=20
of theft to the police for actual investigation and =
prosecution,=E2=80=9D the=20
court held that the supervisor=E2=80=99s department =E2=80=9Cwas =
not an appropriate law=20
enforcement authority under the Whistleblower Act, and there was =
no=20
evidence that [the employee] had an objectively reasonable belief=20
otherwise.=E2=80=9D Id.
<=
/SPAN>Both=20
Catron and Kallina are=20
substantively distinguishable from the instant case. In neither =
case did=20
the governmental entity have the authority either to (1) regulate =
under or=20
to enforce =E2=80=9Cthe law alleged to be violated=E2=80=9D or (2) =
investigate or to=20
prosecute a =E2=80=9Cviolation of criminal law.=E2=80=9D See =
Needham, 82 S.W.3d at=20
319=E2=80=9320.
<=
/SPAN>Here,=20
in contrast, BARC had the authority to regulate under or to =
enforce=20
sections 821.002 and 821.022 of the Health and Safety Code. =
More importantly, it had the authority =
to=20
investigate violations of criminal law, i.e., violations of =
sections=20
6-6(1), (2), and (9) of Chapter 6 of the City Code and =
section 42.09 of the Texas Penal Code =
committed by=20
BARC employees. All =E2=80=9Cpeace officers and animal control =
officers=E2= |