Patel v. Trevino

Full title: RADHA PATEL, Appellant v. SYLVIA TREVINO, CONSTABLE PCT. 6, HARRIS COUNTY…

Court: Court of Appeals of Texas, First District

Date published: Aug 30, 2022

No. 01-20-00445-CV (Tex. App. Aug. 30, 2022)

Opinion

01-20-00445-CV

08-30-2022

RADHA PATEL, Appellant v. SYLVIA TREVINO, CONSTABLE PCT. 6, HARRIS COUNTY, Appellee[1]

Amparo Guerra, Justice

On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2018-61935

Panel consists of Justices Kelly, Goodman, and Guerra.

MEMORANDUM OPINION

Amparo Guerra, Justice

Radha Patel appeals the trial court's order dismissing her claims against Silvia Trevino, in her official capacity as Constable for Precinct 6, Harris County on Constable Trevino's plea to the jurisdiction asserting governmental immunity. Patel contends the trial court erred in granting Constable Trevino's plea to the jurisdiction because the trial court has jurisdiction over her claims brought under Article I, Section 8 of the Texas Constitution, the Whistleblower Act, and the Texas Commission on Human Rights Act ("TCHRA").

We affirm in part and reverse and remand in part.

Background

Patel was a Sergeant in the Harris County Constable's Office Precinct 6 ("Precinct 6") from January 1, 2017, until June 1, 2018, when she was terminated for violations of Precinct 6's Code of Conduct. Her duties included acting as Precinct 6's training coordinator and liaison with the Texas Commission on Law Enforcement ("TCOLE").

On September 11, 2018, Patel filed suit against Silvia Trevino, in her official capacity as elected constable of Precinct 6. Patel claimed Constable Trevino terminated Patel's Precinct 6 employment in violation of Patel's free speech rights under Article I, Section 8 of the Texas Constitution and the Texas Whistleblower Act.² She later amended her petition to add claims of disparate treatment based on race and gender and retaliation under the TCHRA.³

2 See Tex. Gov't Code §§ 554.001-.010.

3 See Tex. Lab. Code §§ 21.001-.556.

In her third amended petition,⁴ Patel alleged that Constable Trevino violated the law by allowing Victor Trevino ("Victor"), Constable Trevino's husband and himself a former constable for Precinct 6 who pleaded guilty to four counts of felony theft while in office, to have access to and become involved in "Precinct office business." Patel alleged that the terms of Victor's probation "exclude[d] him from certain activities[,] including participation in the affairs of Precinct 6, Constable's office." Beginning in June 2017, Patel alleged that Victor became "involved in phone conversations" between Patel and Constable Trevino about Precinct 6 business. Patel alleged that he directed her in those calls about who to hire and fire and how to fill out the required hiring and separation forms for TCOLE. By January 2018, Patel alleged that Victor "had become a regular presence in the Precinct 6 offices, and started giving Patel instructions on what she should teach as [training coordinator]." Patel alleged that she "frequently" reported to Constable Trevino that Victor was "way out of line" in his interactions with her, but that her attempts to guide Constable Trevino "away from illegal acts . . . were rebuffed" by Constable Trevino, who made it clear that Victor was a "permanent presence in her administration of the precinct office."

4 Constable Trevino argues that the second amended petition-the live pleading when she filed her plea to the jurisdiction-and not the third amended petition-which Patel filed the day before the hearing on Constable Trevino's plea to the jurisdiction-is the operative pleading because Patel did not seek leave to file the third amended petition. As noted by Patel, there is no deadline for filing amended pleadings before the hearing or submission of a plea to the jurisdiction. See Church v. City of Alvin, No. 01-13-00865-CV, 2015 WL 5769998, at *4 (Tex. App.- Houston [1st Dist.] Sept. 29, 2015, no pet.) (mem. op.) (holding that third amended petition filed four days before trial court's hearing on plea was operative pleading for purposes of appellate court review); City of McKinney v. Hank's Rest. Grp., L.P., 412 S.W.3d 102, 110 (Tex. App.-Dallas 2013, no pet.) (citing Grand Prairie Hosp. Auth. v. Tarrant Appraisal Dist., 707 S.W.2d 281, 283 (Tex. App.-Fort Worth 1986, writ ref d n.r.e.), for proposition that hearing on plea to jurisdiction is not "trial" under Rule 63, and so amended pleading filed after hearing but before ruling was plaintiff's live pleading for purposes of plea). Accordingly, we conclude that the third amended petition is the operative pleading for purposes of our review.

Patel also alleged that on January 4, 2017, shortly after she was hired, Constable Trevino scheduled a meeting between Patel and Sergeant Ronnie Powell, the training officer from the Harris County Constable's Office Precinct 1 ("Precinct 1"). Powell was on loan to Precinct 6 to help train Patel in her new training officer duties. Patel alleged that she and Powell "worked closely together" and that she and her husband befriended Powell.

Sometime in 2017, Patel alleged that Constable Trevino began making statements "which were generally critical of [African American] females in Precinct 6." Patel also alleged that Constable Trevino instructed her to create a spreadsheet "listing all Precinct 6 female deputies by their race and other employment data." Patel told Constable Trevino this was "probably illegal," but when she did not receive a response from Constable Trevino, she did "as she was told." Patel alleged that Constable Trevino committed the following discriminatory "illegal acts":

• "Refused to hire [African American] females because applicants were 'ghetto'";

• Instructed Patel to "make a list of all females in [Precinct 6] . . . denoting their race, and length of service";

• Fired African American females "for clearly baseless infraction[s] because they 'acted ghetto' [or exhibited] 'conduct unbecoming'";

• "Hired . . . or attempt[ed] to hire unqualified applicants because of their race or gender, reluctantly hired and/or refused to promote [African American] males"; and

• "Hired a Muslim applicant, Nabil Shike[,] telling him to quit his job to work for Precinct 6 but when Silvia became frightened of community pushback because of his religion, on the day Nabil Shike was scheduled to appear in uniform, with his family, and be sworn in as a Precinct 6 Deputy, Silvia told him that she was NOT going to hire him."

Patel also alleged that Constable Trevino committed the "illegal act[]" of authorizing Victor's "actions in violation of the special terms of his felony probation." Patel claimed that, in response to each of the above instances, she reported to Constable Trevino "that she was violating the law by discriminating against applicants on the basis of their race, gender and creed, and against deputies on the basis of their race and gender, and for giving Victor [Trevino] free reign to violate the Court's orders on his felony probation."

Patel also alleged that she reported "in general terms Victor's probation violations and Constable Trevino's complicit misconduct to [Sergeant] Powell, Precinct 1 around Christmas 2017." Later, "during the first week of March 2018," she reported the details of the Trevinos' "specific misconduct" to Powell and asked that he "pass her concerns along to his friend Precinct 1 Chief Deputy Carl Shaw."

Around the second week of March 2018, Powell told Patel that he had passed her report on to Chief Shaw but he did not expect Chief Shaw "to do anything" because he was "really close" to the Trevinos. According to Patel, Constable Trevino became distant thereafter and began making "odd and accusatory remarks to Patel regarding [her] working relationship with [Sergeant] Powell."

Patel also alleged that in late March 2018, she was involved in a "heated exchange" with Chief Deputy Lillian Lozano⁵ during which Lozano objected to "any Indians over Hispanics," to which Patel "pointed out that there was only one Indian in Precinct 6 . . . Patel."

5 According to Patel, Lozano was known around the office for stating that she did not want "[African American] deputies to supervise Hispanic deputies."

On June 1, 2018, Patel alleged that she was "suddenly fired" by Constable Trevino and that her termination proceedings were conducted by three deputies: Paul Fernandez, Joe Martinez, and Danny Avalos. Patel alleged that these three deputies (all men) asked Patel inappropriate questions "about her sex life and intimate relationships indicating that she was having an affair with Powell," to which she objected. Patel alleged that she was given a "general discharge," which she appealed to the State Office of Administrative Hearings ("SOAH"). Powell alleged that, during that proceeding, Constable Trevino counsel "emailed Patel and her lawyer and said that [Constable Trevino] was changing the discharge from General to Honorable." Patel characterizes the change from "general" to "honorable" as Constable Trevino's admission "that her supposedly good cause or legitimate business reasons for firing Patel were false and [that] Patel was not under investigation."

Based on the allegations, Patel brought three causes of action. First, she alleged free speech retaliation claims under Article I, Section 8 of the Texas Constitution based on two expressions of protected speech: (1) her opposition to Constable Trevino's "violation of statutory proscriptions against employment discrimination"; and (2) her opposition to Constable Trevino's "abett[ing] Victor in violating the terms of his felony probation." Second, she alleged a violation of the Whistleblower Act based on her "report[ing] in detail [Constable Trevino's] abetting Victor's violation of the special terms of his probation to [Sergeant] Ronnie Powell to be passed along to his supervisor Chief Carl Shaw." Third, under the TCHRA, she alleged a disparate treatment claim based on her race and gender and a retaliation claim based on her "opposition to [Precinct 6's] discriminatory employment practices." Patel sought actual damages in addition to an injunction requiring Constable Trevino to reinstate her "with all attendant benefits to her employment at Precinct 6." Patel also sought recovery of attorney's fees and costs.

Constable Trevino filed a plea to the jurisdiction asserting that she was immune from suit and raising the following specific arguments: (1) Patel failed to exhaust her administrative remedies, which was a jurisdictional prerequisite to filing suit;⁶ (2) Patel's Whistleblower Act claim was barred by the statute of limitations; (3) Patel's Whistleblower Act claim was preempted by the TCHRA; (4) Patel could not satisfy the elements of her Whistleblower Act claim; (5) Patel's free speech retaliation claim was facially invalid; and (6) Patel's TCHRA claims were barred by the statute of limitations. Constable Trevino attached evidence to her plea to the jurisdiction, including her own affidavit, a transcript from Patel's deposition, and several documents detailing the reasons for Patel's termination.

6 Constable Trevino abandoned this argument on appeal as a basis for immunity, recognizing this Court has held that Tex. Loc. Gov't Code § 89.004 is not a jurisdictional prerequisite to suit. See Jefferson Cnty. v. Farris, 569 S.W.3d 814, 827-28 (Tex. App.-Houston [1st Dist] 2018, pet. denied).

In her plea and supporting affidavit, Constable Trevino stated she discovered Patel was involved in a relationship with Powell. Constable Trevino also stated this relationship between Patel and Powell resulted in an incident occurring on May 9, 2018, between the two in a public restaurant, BJ's Brewhouse, while they were off duty. According to Constable Trevino, Patel and Powell were sitting together at the bar watching sports when Powell grabbed Patel's phone in an aggressive manner that caused an injury to her hand. He gave the phone back, and she left the restaurant. Patel did not report this incident to Constable Trevino or any supervisor, but Powell reported it to his supervisor the next day, May 10, causing Precinct 1 to open an investigation. Constable Trevino also explained that Patel returned to the restaurant in uniform the next day and tried to obtain a copy of the surveillance tape reflecting her exchange with Powell. Constable Trevino testified in her affidavit that Patel provided numerous statements during the investigation into the incident denying a relationship with Powell and attached those statements. Further, Constable Trevino testified Patel admitted a relationship in an email sent after her termination.

Constable Trevino also attached evidence to her plea demonstrating Patel was reprimanded or counseled on two prior occasions for violating department policy. Constable Trevino testified Patel was terminated on June 1, 2018 for violations of Precinct 6's Code of Conduct.

Patel responded to the plea and attached two pieces of evidence: (1) her charge of discrimination filed with the Texas Workforce Commission, and (2) the Texas Workforce Commission's Notice of Complainant's Right to File Civil Action. After a hearing, the trial court granted the plea and dismissed Patel's claims against Constable Trevino with prejudice.

Plea to the Jurisdiction

Patel argues that the trial court erred by granting Constable Trevino's plea to the jurisdiction on her Texas Constitution, Whistleblower Act, and TCHRA claims.

A. Standard of Review

Immunity from suit defeats a trial court's subject matter jurisdiction and "thus is properly asserted in a plea to the jurisdiction." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction is a question of law that we review de novo. Id. at 226, 228. A plea to the jurisdiction "may challenge the pleadings, the existence of jurisdictional facts, or both." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). If a plea "challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Miranda, 133 S.W.3d at 226. In determining whether the plaintiff has met that burden, "we liberally construe the pleadings, taking all factual assertions as true and looking to [the plaintiff's] intent." City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015).

But when a plea to the jurisdiction challenges the existence of jurisdictional facts, we look beyond the pleadings and consider evidence submitted by the parties "when necessary to resolve the jurisdictional issues raised," even if the evidence implicates both the court's jurisdiction and the merits of a claim. Miranda, 133 S.W.3d at 227. For a plea that challenges the existence of jurisdictional facts, our standard of review generally mirrors that of a traditional summary judgment: a plaintiff must raise a genuine issue of material fact to overcome the challenge to the trial court's jurisdiction. Id. at 221, 228. In determining whether the plaintiff has met that burden, "we take as true all evidence favorable to" the plaintiff and "indulge every reasonable inference and resolve any doubts in the [plaintiff's] favor." Id. at 228. In doing so, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Clark, 544 S.W.3d at 771. If the evidence and allegations create a fact question on jurisdiction, then a court cannot grant a plea to the jurisdiction, and the factfinder must resolve the fact issue. Miranda, 133 S.W.3d at 227-28. But "if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue," a court rules "on the plea to the jurisdiction as a matter of law."⁷ Id. at 228.

7 In her fifth issue, Patel argues the trial court erred in requiring her "to lay out evidence of her claims in argument when the attack was on her pleadings." She contends that although a plaintiff is required to plead facts showing jurisdiction, she is not "required to marshal evidence and prove her claim to satisfy this jurisdictional hurdle." But this argument overlooks the standards detailed above, i.e., that the plea to the jurisdiction may also challenge the existence of jurisdictional facts. When the plaintiff's "factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018). This is true even if the evidence implicates both subject matter jurisdiction and the merits of a claim. Id. Here, Constable Trevino's plea to the jurisdiction challenged the existence of jurisdictional facts with supporting evidence. Thus, it was Patel's burden to raise at least a genuine issue of material fact to overcome the challenge and avoid dismissal.

Generally, sovereign immunity deprives a trial court of jurisdiction over a lawsuit in which a party has sued the State or a state agency, unless the Legislature has consented to suit. Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). A suit against a government employee in her official capacity is a suit against her government employer; therefore, an employee sued in her official capacity has the same governmental immunity, derivatively, as her government employer. Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex. 2011). But there is an exception: an action alleging that the government employee acted ultra vires. Id. An ultra vires action is one in which the plaintiff seeks relief against a government employee in her official capacity who allegedly has violated statutory or constitutional provisions by acting without legal authority or by failing to perform a purely ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009). Ultra vires suits do not attempt to exert control over the State-they attempt to reassert control of the State. Id. at 372.

When a plaintiff alleges that a government employee in her official capacity acted ultra vires, we must examine whether the plaintiff's petition sufficiently pleaded her claims to defeat the government's plea to the jurisdiction. See Miranda, 133 S.W.3d at 226. While a plea to the jurisdiction "does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction," the plaintiffs must do more than merely name a cause of action against the state official and assert the existence of a constitutional violation. Id. at 223; see Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering merits of equal-protection claim against Secretary of State in review of plea to jurisdiction and explaining that Secretary retained immunity from suit unless plaintiffs pleaded "viable claim"); City of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App.-Texarkana 2011, pet. denied) (noting governmental defendant remains immune from suit absent plaintiff's pleading of viable claim). To state a claim within the waiver of sovereign immunity, the plaintiff must plead a facially valid constitutional claim. See City of Houston v. Johnson, 353 S.W.3d 499, 504 (Tex. App.-Houston [14th Dist.] 2011, pet. denied).

B. Free Speech Retaliation Claim under Article I, Section 8 of the Texas Constitution

In her first issue, Patel argues that she was terminated for engaging in protected speech on the following matters of public concern, in violation of Article I, Section 8 of the Texas Constitution:⁸ (1) reporting and opposing Constable Trevino's abetting Victor's violation of the terms of his felony probation; and (2) reporting and opposing Constable Trevino's discriminatory practices based on race, creed, or national origin.⁹

8 Article I, Section 8 provides that "[e]very person shall be at liberty to speak, write or publish his opinions on any subject." Tex. Const. art. I, § 8.

9 Patel also makes a conclusory argument that she opposed sexual harassment, which allegedly occurred during her termination on June 1, 2018. Patel contends male officers asked her inappropriate questions about her sex life during the termination proceedings, and that she opposed such sexual harassment. In her third amended petition, however, she did not plead that this opposition to sexual harassment was private speech protected by Article I, Section 8 of the Texas Constitution. Nor did she allege that she was terminated because of this opposition. Even if she had included such allegations, because these questions occurred during her termination proceedings, it logically follows that the decision to terminate her had already been made at the time she opposed such conduct. Thus, she cannot show her termination was motivated by this speech. Cf. Price v. Tex. Alcoholic Beverage Comm'n, No. 01-12-01164-CV, 2014 WL 3408696, at *7 (Tex. App.-Houston [1st Dist.] July 10, 2014, pet. denied) (mem. op.) ("Because an employee must show that protected speech was a 'substantial or motivating factor in the termination,' the alleged protected speech, logically, must have occurred before the termination.").

To establish a free-speech retaliation claim against a government defendant under Article I, Section 8 of the Texas Constitution, a plaintiff must prove the following elements: (1) the plaintiff suffered an adverse employment action, (2) the plaintiff's speech involved a matter of public concern, (3) the plaintiff's interest in speaking outweighed the governmental defendant's interest in promoting efficiency, and (4) the protected speech motivated the defendant's conduct. See Caleb v. Carranza, 518 S.W.3d 537, 544 (Tex. App.-Houston [1st Dist.] 2017, no pet.); see also Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011). Because Patel does not argue that the Texas Constitution offers her any greater protection than provided by the First Amendment to the United States Constitution, we may rely on persuasive authorities applying free speech protections under both the federal and Texas constitutions. See Caleb, 518 S.W.3d at 543; see also Price v. Tex. Alcoholic Beverage Comm'n, No. 01-12-1164-CV, 2014 WL 3408696, at *5 (Tex. App.- Houston [1st Dist.] July 10, 2014, pet. denied) (mem. op.).

The basis for awarding constitutional protection to private speech on the part of employees of a governmental agency is to allow the employees to participate freely in public affairs and avoid chilling their use of speech that the employer might find objectionable. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568 (1968). But when a public employee speaks not as a citizen but as an employee on a matter of personal interest, constitutionally protected speech is not involved. Connick v. Myers, 461 U.S. 138, 147 (1983).

In Garcetti v. Ceballos, the United States Supreme Court held that in considering whether to apply constitutional protections to public employee speech, the reviewing court must undertake two inquiries. 547 U.S. 410, 418 (2006). First, the court must determine whether the employee spoke as a citizen on a matter of public concern. Id. If the answer is no, the employee has no First Amendment cause of action based on her employer's reaction to the speech. Id. If the answer is yes, the possibility of a First Amendment claim arises, and the question becomes whether the government entity "had an adequate justification for treating the employee differently from any other member of the general public." Id.

To determine whether the employee spoke as a citizen, the reviewing court must shift its focus "from the content of the speech to the role the speaker occupied when he said it." Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007) (per curiam) (citing Garcetti, 547 U.S. at 418). To do so, we decide whether the employee's speech was made pursuant to official duties. Turner v. Perry, 278 S.W.3d 806, 816 (Tex. App.-Houston [14th Dist.] 2009, pet. denied). Activities required by one's position or undertaken while performing one's job are activities pursuant to official duties. Williams, 480 F.3d at 693. Speech made pursuant to official duties is not protected by the First Amendment, because "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Turner, 278 S.W.3d at 816 (quoting Garcetti, 547 U.S. at 421-22).

Additionally, "[t]o rise to the level of public concern, the speech at issue must have been made primarily as a citizen rather than as an employee addressing matters only of personal concern." Denton v. Morgan, 136 F.3d 1038, 1042 (5th Cir. 1998). An employee's speech is not of public concern if she speaks "upon matters only of personal interest." See Connick, 461 U.S. at 147. "Because almost anything that occurs within a public agency could be of concern to the public, we do not focus on the inherent interest or importance of the matters discussed by the employee" but rather on whether the speech was made primarily in the plaintiff's role as a citizen or in her role as an employee. Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir. 1986).

1. Reporting Constable Trevino's Abetting Victor's Violation of His Probation

To determine whether Patel's speech reporting Constable Trevino's abetting of Victor's violation of his probation to Powell is constitutionally protected, we consider whether this speech touched on a matter of public concern. Caleb, 518 S.W.3d at 544. In determining whether speech touches on a matter of public concern, we consider the content, context, and form of the speech, and we evaluate whether the speech "inform[s] the populace of more than the fact of an employee's employment grievance," was "made against the backdrop of public debate," and was not made "in furtherance of a personal employer-employee dispute." Price, 2014 WL 3408696, at *8.

Patel argues that police misconduct inherently involves a matter of public concern and, thus, her report to Powell was constitutionally protected. Patel is correct that the Fifth Circuit, in analyzing similar First Amendment free speech claims, has held that, generally, "[s]peech regarding police misconduct constitutes a matter of public concern." Teague v. City of Flower Mound, 179 F.3d 377, 381 (5th Cir. 1999). But in Teague, the Fifth Circuit recognized that the plaintiffs' speech- grievances filed by former internal affairs officers against the chief of police alleging a cover up-also involved a matter of private concern resulting in a "mixed speech situation." Id. Ultimately, the Fifth Circuit concluded the plaintiffs' speech, when considered in context, was "more appropriately characterized as private: It was made in the setting of a private employee-employer dispute." Id. The Fifth Circuit also found it relevant the plaintiffs chose to file "internal grievances rather than publicize their complaints," noting that "this evidence does most certainly suggests that the speech was private in context, rather than public." Id. Further, the Fifth Circuit concluded that the "speech in question [was] undeniably private in form," in that the grievances addressed the officers' concerns about clearing their names as opposed to "rooting out police corruption per se." Id.; see also Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993) (finding that although speech concerned police misconduct within internal affairs department, which was of public concern, plaintiff's speech was private in nature because its focus was on misconduct "only insofar as it impacted his wish to continue his investigation").

Here, Patel's deposition testimony demonstrates that her speech was private in nature in that her focus was on her reputation as a law enforcement officer and liaison to TCOLE, and not on rooting out or exposing police corruption or misconduct. For instance, Patel testified at her deposition that she was the liaison to TCOLE and a background investigator and training coordinator for Constable Trevino. Patel testified that Constable Trevino allowed Victor to have access to Precinct 6, including visiting the offices and having access to equipment, in violation of the terms of his probation. According to Patel, she informed Powell that Victor's "constant presence [at Precinct 6] being a felon" could "literally make [her] lose [her] job, [her] license, and probably [] end up in jail," and that this was "extremely uncomfortable . . . for a person in [her] position." Patel also testified that she started "voicing [her] opinion" about Victor's involvement in Precinct 6 because "if someone s[aw] Victor in the hallway," took a picture "with [her] in the frame," and sent it to TCOLE, "[she would be] done." Patel also agreed that she "had a concern about [her] professional career as a law enforcement officer and appearing in a picture in full uniform . . . in the same frame as Victor[.]" Patel explained that if TCOLE conducted "a random audit" at Precinct 6, and Victor was present, "[t]hey would drag me to Huntsville." She also stated that Victor's constant presence, as a felon, being around paperwork and computer files "started jeopardizing [Patel's] career being the only training coordinator in the history of Precinct 6." Finally, Patel admitted that she reported Victor's presence at the Precinct 6 office only to Powell, her colleague, and not to anyone else and not to the public. Although Powell was a Sergeant with Precinct 1, he was brought to Precinct 6 to work with Patel and train her in her role as training coordinator.

Similar to Teague, this evidence demonstrates that although Patel's speech related to Constable Trevino's alleged abetting of Victor's probation violations related to a matter of public concern, i.e., alleged police misconduct, the speech was primarily motivated by concerns particular to her private interests and professional reputation. See Teague, 179 F.3d at 381; see also Markos v. City of Atlanta, 364 F.3d 567, 571 (5th Cir. 2004) ("Statements made to exonerate one's own professional reputation address a matter of personal concern.").

Moreover, the form of Patel's speech-statements to Powell, a fellow law enforcement officer and colleague brought to Precinct 6 to train Patel-weighs against it pertaining to a matter of public concern. See Malin v. Orleans Par. Commc'ns Dist., 718 Fed.Appx. 264, 271 (5th Cir. 2018) (concluding form of plaintiff's speech-an email to colleagues in response to internal personnel announcement-weighed against finding speech pertained to matter of public concern as plaintiff "made no attempt to send the email or disseminate its message outside the workplace"); Dodds v. Childers, 933 F.2d 271, 274 (5th Cir. 1991) (finding form and context of an employee's complaint did not support her contention that she addressed matter of public concern when she did not address her complaints to anyone outside the institution); cf. Modica v. Taylor, 465 F.3d 174, 181 (5th Cir. 2006) (holding plaintiff's choice to inform someone outside her workplace of her concerns supported her contention that speech was public); Markos, 364 F.3d at 571 (holding speech was public in form because plaintiff "made his comments to a newspaper reporter, and [his] statements make it clear that he understood that his statements were to be used in a published article").

Accordingly, this speech does not qualify as protected speech made by a citizen on a matter of public concern under Article I, Section 8 of the Texas Constitution. See Teague, 179 F.3d at 383-84 (holding plaintiffs did "not enjoy the First Amendment protections of citizens speaking to a matter of public concern" because their "grievances were primarily motivated by, and primarily addressed, concerns particular to their private interests"). Thus, because Patel's report to Powell was outside the ambit of free speech protection, she failed to allege a facially valid constitutional claim with respect to this speech.

2. Opposition to Constable Trevino's Alleged Discriminatory Employment Practices

Next, we consider Patel's allegations that she was terminated for expressing her opposition to Constable Trevino's alleged discriminatory employment practices to both Constable Trevino and Powell.

In her brief, Patel first contends that she generally voiced opposition to Constable Trevino's "discriminatory employment practice[s]" to Constable Trevino in the office and after she drove Constable Trevino back from mandatory state constable classes at the end of May 2018, one week before she was terminated. Likewise, she voiced these same concerns to Powell in December 2017. She argues that voicing opposition to racial discrimination is inherently of public concern, and that she was not acting as an employee, but instead as a private citizen, by voicing this opposition.

Again, it is true that the Fifth Circuit has stated that speech relating to racial discrimination "almost always involves matters of public concern." Charles v. Grief, 522 F.3d 508, 514 (5th Cir. 2008). However, not all speech by a public employee is constitutionally protected, and when a public employee makes statements in their official capacity, she is "not speaking as [a] citizen[] for free speech purposes." Caleb, 518 S.W.3d at 543. Thus, the "critical inquiry is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Id. To determine whether the employee was speaking in their official capacity, courts review several factors, including the internal versus external nature of the speech, the employee's formal job description, whether the employee spoke on the subject matter of his or her employment, and whether the speech resulted from special knowledge gained as an employee. Williams, 480 F.3d at 692.

Considering these factors, we conclude Patel's claim for retaliation based on her opposition to Constable Trevino's alleged discriminatory employment practices fails as a matter of law, because the evidence establishes her speech related to her professional duties as a public employee. In her deposition, Patel testified that her duties at Precinct 6 involved performing background investigations, acting as training coordinator, and assisting in determining employment eligibility for peace officer applicants to Precinct 6. Specifically, Patel testified she had the duties of "training coordinator, background investigator" when she worked for Constable Trevino at Precinct 6. Patel further described the requirements she requested from applicants under her "TCOLE checklist," and she would "hire people . . . in all departments." Further, when discussing her general discharge designation, Patel agreed she was "the person charged with responsibility for checking background and employment eligibility for peace officers at Precinct [6]." In connection with this role, Patel described witnessing Constable Trevino showing preference for Hispanic applicants, asking Patel to "slip" other non-Hispanic applicants to the bottom, and requiring Patel to keep a spreadsheet of applicants containing notations for their race "[s]o if [Constable Trevino] want[ed] to hire someone or promote someone, she went right by that [spreadsheet]."¹⁰ Patel testified to one specific instance in which she voiced her opposition to Constable Trevino about Constable Trevino's alleged discriminatory employment practices.¹¹ Patel testified she told Constable Trevino she opposed the racially discriminatory conduct-the refusal to hire African Americans or Muslims-and that Constable Trevino reacted by telling her: "Radha, I go and run everything by my babe. If you want someone hired, and if you think it's a great applicant, good, give me his file. I'll go home and I'll talk to my husband about it."

10 Patel also contends she opposed Constable Trevino's alleged refusal to hire a Muslim applicant, Nabil Shike. However, Patel testified at her deposition that Constable Trevino's refusal to hire Shike occurred "after [Patel] stopped working [at Precinct 6]." Because Constable Trevino did not refuse to hire Shike until after Patel no longer worked at Precinct 6, Patel could not have engaged in any alleged protected speech opposing Constable Trevino's refusal to hire Shike before she was terminated and, thus, any alleged protected speech related to this could not have been a substantial or motivating factor in her termination. See Price, 2014 WL 3408696, at *7 ("Because an employee must show that protected speech was a 'substantial or motivating factor in the termination,' the alleged protected speech, logically, must have occurred before the termination.").

11 To the extent Patel argues she voiced her opposition to Constable Trevino at any other time, including during a trip from Huntsville one week before Patel's termination, the record does not support that allegation. In her deposition, Patel described only one instance where she explicitly opposed Constable Trevino's alleged discriminatory practices, as described above. When asked whether Patel and Constable Trevino "had any particular disagreement or words related to employment practices" before she was terminated, Patel did not state that she raised her opposition to Constable Trevino during their drive back from Huntsville, but instead testified:

We didn't have - we stopped talking quite a bit. And everything was just taken down a couple of notches, because that's the time where she had to go to Huntsville. Silvia doesn't like traveling by herself. I always go with her or Lozano does or her husband does.

She had this conception that whenever her husband went to that training 101 class, Constable 101 class, she always went with him. I diligently tried to get her into that class with her husband to get a vehicle where they can go together. I diligently tried. I made several phone calls, and they said no. He cannot be there. So I have to find a very discrete way to tell her that. So she was very mad at me like it's my fault. And she did go there, and she didn't talk to me or anything like that. She came back, and she let me go.

It is evident from this testimony that Patel reported her concerns about matters she learned as a public employee and in her professional role. And, with respect to her report to Constable Trevino, this evidence demonstrates Patel voiced her concerns in the context of providing feedback on the employment eligibility of applicants to Precinct 6. See Williams, 480 F.3d at 694 (holding speech made in course of performing job duties where athletic director's criticism of school principal was possible because of special knowledge and experience with athletic procedures); see also Salman v. KIPP, Inc., No. 01-19-00886-CV, 2021 WL 2931360, at *2 (Tex. App.-Houston [1st Dist.] July 13, 2021, pet. denied) (mem. op.) (holding plaintiff, former principal of KIPP who voiced concerns about bilingual funding and complained that KIPP did not permit her to hire African American woman as principal, made comments in her capacity as employee rather than private citizen because her responsibilities included addressing school's compliance for funding issues and involvement in selection of principals).

Additionally, she reported those concerns to an exclusively internal audience. Constable Trevino was Patel's direct supervisor within Precinct 6. Also, as discussed, although Powell was a Sergeant with Precinct 1, he was brought to Precinct 6 specifically to train Patel in her role as training coordinator. Her decision to report her concerns internally supports the conclusion that she was acting as an employee and not a citizen. See Charles, 522 F.3d at 514 (concluding employee's emails opposing discriminatory practices, which were directed "externally" to Texas legislatures, were protected speech and distinguishing cases in which plaintiffs raised complaints internally); see also Malin, 718 Fed.Appx. at 271; Dodds, 933 F.2d at 274.

Patel's comments in opposition to Constable Trevino's discriminatory employment practices were made to an exclusively internal audience, related to her role as training coordinator, and therefore, in her capacity as an employee not a private citizen. This speech is not afforded protection under the Texas Constitution. See Salman, 2021 WL 2931360, at *2.¹²

12 We note that Patel is not without a remedy for her retaliation claims based on her opposition to discriminatory practices and police misconduct. As discussed in more detail below, a fact issue remains on her claims under the Whistleblower Act and the TCHRA, and we reverse and remand those claims.

We overrule Patel's first issue.

C. Whistleblower Act

In her second issue, Patel argues that the trial court had subject matter jurisdiction over her Whistleblower Act claim. In her third amended petition, Patel contends that "[o]n or about March 5th-9th, 2018," she "reported in detail Silvia's abetting Victor's violation of the special terms of his probation to [Sergeant] Ronnie Powell to be passed along to his supervisor Chief Carl Shaw." Constable Trevino responds that Patel failed to establish the following elements of her Whistleblower Act claim: (1) she reported in good faith a violation of law by a governmental entity or public employee; (2) to an appropriate law enforcement agency; and (3) that her report was the but-for cause of her termination.¹³

13 Constable Trevino also argues Patel's Whistleblower Act claim based on racial discrimination is preempted by the TCHRA. While it is true that the TCHRA is the exclusive remedy for claims based on alleged illegal acts arising from allegations of racial animus, see City of Waco v. Lopez, 259 S.W.3d 147, 152-56 (Tex. 2008), Patel does not allege a claim under the Whistleblower Act based on her reporting of Constable Trevino's alleged discriminatory employment practices. Rather, the only allegation in her third amended petition that appears under this "count" is that she "reported in detail [Constable Trevino's] abetting Victor's violation of the special terms of his probation to [Sergeant] Ronnie Powell to be passed along to his supervisor Chief Carl Shaw." And Patel admits in her reply brief that she did not bring a Whistleblower Act claim based on reporting racial discrimination.

1. Applicable Law

The Whistleblower Act prohibits the suspension or termination of "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." Tex. Gov't Code § 554.002. A public employee who sues under the Whistleblower Act has the burden of proof. Id. § 554.004(a). Thus, in a Whistleblower Act suit by a public employee against her governmental employer, the employee must show that she (1) reported (2) a violation of law by the employer or another public employee (3) to an appropriate law enforcement authority, (4) the report was made in good faith, and (5) the adverse action would not have occurred when it did if the employee had not reported the illegal conduct. Id. § 554.002(a); City of Fort Worth v. Pridgen, ___ S.W.3d ___, 2022 WL 1696036, at *5 (Tex. May 27, 2022). Although the statute does not explicitly require an employee to prove a causal link between the report and the subsequent suspension or termination, the Texas Supreme Court has held that the employee must demonstrate all elements of the action, including causation, by a preponderance of the evidence. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000) (citing Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995)).

2. Violation of Law by a Government Agency or Employee

Constable Trevino contends there are three reasons why Patel failed to establish that she reported a violation of law by a government employee. First, according to Constable Trevino, Patel's complaints relate only to Victor's alleged probation violations, but Victor is not a government employee. Second, Patel failed to plead a violation of a law by Constable Trevino because she did not identify in her petition the specific criminal statute alleged to have been violated. And third, Constable Trevino's alleged abetting the violation of Victor's terms of community supervision is not a criminal offense.

As noted, for a complaint to be a "protected activity" under the Whistleblower Act, it must be a good faith report of a violation of law to an appropriate law enforcement authority. See Tex. Gov't Code § 554.002(a). The "good faith" requirement of subsection 554.002(a) has both subjective and objective components: The employee must show that (1) she believed the conduct reported was a violation of law, and (2) her belief was reasonable considering her training and experience. Wichita Cnty. v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). A law enforcement officer, like Patel, is held to a higher standard when evaluating whether she was reasonable in her belief. See Harris Cnty. Precinct Four Constable Dep't v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996).

Constable Trevino first contends that Patel failed to allege a violation of law by a public employee because her only allegations relate to Victor's probation violations, but do not point to any alleged violation of the law by the constable herself. We disagree. In her petition, Patel alleged that Constable Trevino allowed Victor to listen in on phone calls related to Precinct 6 business and attend meetings in the office and stated that she would not "make a decision without consulting with Victor." Patel further alleged that she reported "in detail [Constable Trevino's] abetting Victor's violation of the special terms of his probation." Patel testified to much of the same during her deposition, including:

• Victor "was a constant presence" at Precinct 6, who "made a habit" of coming to Precinct 6 and was "around paperwork" and "all these computer[s]";

• Constable Trevino brought Victor into Precinct 6, around equipment and sensitive criminal databases such as the National Crime Information Center (NCIC)¹⁴ and the Texas Crime Information Center (TCIC),¹⁵ "where felons shouldn't be";

• Victor would eat lunch at Precinct 6 around "people running warrants, criminal warrants, all kinds of stuff on these databases that [Victor] is [not] allowed to be in front of," and Constable Trevino would join him;

• Constable Trevino allowed Victor to "come around" Precinct 6 often and he began speaking for her at events;

• Constable Trevino "r[a]n everything" by Victor, including employment decisions for Precinct 6; and

• Patel reported this illegal conduct to Powell.

14 The NCIC houses the "cooperative federal-state system for the exchange of criminal history records, and includes the National Identification Index, the National Fingerprint File, and, to the extent of their participation in such system, the criminal history record repositories of the states and the FBI." 28 C.F.R. §§ 20.3(m), 20.3(n).

15 TCIC is a "statewide criminal information database used by law enforcement agencies." Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim. App. 2002).

The above allegations and evidence demonstrate that Patel complained of Constable Trevino's conduct in allowing Victor to be involved in Precinct 6's business, not just Victor's conduct.

Second, we reject Constable Trevino's argument that Patel's failure to identify in her petition the law Constable Trevino allegedly violated alone defeats jurisdiction. See Gray v. City of Galveston, No. 14-12-00183-CV, 2013 WL 2247386, at *3 (Tex. App.-Houston [14th Dist.] May 21, 2013, no pet.) (mem. op.) ("Gray . . . does not identify any law that Wiley allegedly violated. However, this is not the end of our inquiry on a plea to the jurisdiction. 'Even though [Gray's] pleadings do not sufficiently allege jurisdictional facts, before his claim is dismissed for want of jurisdiction we will look to the arguments and evidence the parties presented relevant to the existence of jurisdictional facts."); see also Cnty. of Bexar v. Steward, 139 S.W.3d 354, 359 (Tex. App.-San Antonio 2004, no pet.) ("We note that [the employee's] failure to specify in his petition which particular provisions of the criminal statute the alleged conduct violated does not defeat jurisdiction over his claim."). The Whistleblower Act does not require the employee to "identify a specific law when making a report[,]" and the employee need not "establish an actual violation of law." Tex. Dep't of Criminal Justice v. McElyea, 239 S.W.3d 842, 850 (Tex. App.-Austin 2007, pet. denied); see also City of Donna v. Ramirez, 548 S.W.3d 26, 37 (Tex. App.-Corpus Christi-Edinburg 2017, pet. denied). However, there must be "some law prohibiting the complained-of conduct to give rise to a whistleblower claim." McElyea, 239 S.W.3d at 850; Ramirez, 548 S.W.3d at 37. Therefore, we examine the evidence to determine whether Patel's reporting of Constable Trevino's involvement of Victor in Precinct 6 business was a good faith report of a violation of law.

We conclude that it was a good faith report of a violation of the law because Patel's report identified actions potentially implicating the Texas Penal Code and the Texas Government Code.¹⁶ See Ramirez, 548 S.W.3d at 38 (construing employee's evidence that elected officials ordered him to waive or remove certain bills and charges for city services as implicating Penal Code offenses, including abuse of official capacity); Morales v. Hidalgo Cnty. Irrigation Dist. No. 6, No. 13-13-00265-CV, 2015 WL 1284664, at *5 (Tex. App.-Corpus Christi Mar. 19, 2015, no pet.) (mem. op.) (construing employee's report as implicating various Penal Code offenses including abuse of official capacity and official oppression); see also McElyea, 239 S.W.3d at 850 ("There is no requirement that an employee identify a specific law when making a report.").

16 At oral argument, Patel pointed to Section 7.02 of the Penal Code as the statute Constable Trevino allegedly violated by aiding and abetting Victor in violating the terms of his probation. Section 7.02 provides: "A person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Penal Code § 7.02(a)(2). We disagree that Section 7.02 applies here because it requires the commission of an underlying "offense." Violation of community supervision is not an offense under the Penal Code. See Tex. Code Crim. Pro. art. 42A.751.

For instance, Section 39.06(b) of the Penal Code provides:

A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose that: (1) he has access to by means of his office or employment; and (2) has not been made public.

Tex. Penal Code § 39.06(b). Although "nongovernmental purpose" is not defined in this statute, one Texas court of appeals has interpreted it according to its common meaning to include "an activity or function which is not related to or associated with a governmental function." Tidwell v. State, No. 08-11-00322-CR, 2013 WL 6405498, at *15 (Tex. App.-El Paso Dec. 4, 2013, pet. ref'd) (mem. op.). Under this section, "information that has not been made public" means any information to which the public does not generally have access, and that is prohibited from disclosure under Chapter 552, Government Code. Tex. Penal Code § 39.06(d).

Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Tex. Gov't Code § 552.101. This encompasses information protected by Section 411.083 of the Government Code, which pertains to criminal history record information ("CHRI"). See Op. Tex. Att'y Gen. No. OR2019-27622 (2019). CHRI means "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." Tex. Gov't Code § 411.082(2).

CHRI generated by the NCIC or by the TCIC is confidential under federal and state law. Id. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI obtained from the NCIC network or other states. See 28 C.F.R. § 20.21. Section 411.083 of the Government Code deems confidential CHRI the Texas Department of Public Safety ("DPS") maintains, except DPS may disseminate this information to certain agencies as provided in chapter 411, subchapter F, or subchapter E-l, of the Government Code. See Tex. Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a), in turn, authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). The Texas Attorney General has consistently held that information within the scope of Section 411.083, including information contained in NCIC and TCIC reports, is exempt from disclosure by Section 552.101. See Doe v. Tarrant Cnty. Dist. Attorney's Office, 269 S.W.3d 147, 156 (Tex. App.-Fort Worth 2008, no pet.). Further, Section 411.085 makes it a criminal offense for a person to knowingly or intentionally "obtain[] criminal history record information in an unauthorized manner, use[] the information for an unauthorized purpose, or disclose[] the information to a person who is not entitled to the information." Id. § 411.085(a)(1).

As detailed, Patel testified that Constable Trevino brought Victor to Precinct 6 and involved him in Precinct 6 business, allowing him to be around sensitive equipment, paperwork, and databases, including NCIC and TCIC. Because Victor is not a member of a criminal justice agency or otherwise authorized to have access to CHRI under Section 411.083, the disclosure of CHRI through NCIC or TCIC to Victor would be prohibited. See Tex. Gov't Code §§ 411.083, .085. Furthermore, this information is generally not available to the public and is not subject to disclosure under Chapter 552. See Tex. Penal Code § 39.06(d). Disclosure of this confidential information to Victor, who was not authorized to receive it, and any use thereof by Victor would not be for a governmental purpose. See Tidwell, 2013 WL 6405498, at *16 (holding because defendant was not authorized to obtain privileged and confidential complaint filed with Texas Medical Board, defendant's use of complaint to identify authors was for nongovernmental purpose). Thus, the actions Patel alleged and testified to, if true, could possibly violate both the Penal Code and the Government Code. Indulging every reasonable inference and resolving any doubts in favor of Patel, the nonmovant, we conclude there is at least a fact issue as to whether Patel reported a violation of law in good faith. See Miranda, 133 S.W.3d at 228.

3. Appropriate Law Enforcement Agency

Constable Trevino next argues that Patel's "report" to "her social acquaintance or putative boyfriend, who worked as a training officer in [a] separate Constable precinct" did not qualify as a report to an "appropriate law enforcement agency" to satisfy Section 554.002(b) of the government code. See Tex. Gov't Code § 554.002(b).

Section 554.002(b) defines "appropriate law enforcement authority" as follows:

[A] report is made to an appropriate law enforcement authority if the authority is 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. An employee's belief is in good faith if: (1) the employee believed the governmental entity was qualified, and (2) the employee's belief was reasonable considering the employee's training and experience. Tex. Dep't of Human Servs. v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014).

Constable Trevino contends Powell was not an "appropriate law enforcement authority" because he was a training coordinator in a separate precinct with whom Patel carried on a personal relationship and he did not have "the power to regulate under, investigate, enforce, or prosecute a violation [of criminal law]." But there is no dispute that Powell is a law enforcement officer. He was training coordinator for Precinct 1 but was also "on loan" to Precinct 6.

The Texas Supreme Court has recognized that a law enforcement officer "is authorized to investigate violations of law and to cite or arrest persons suspected of committing such violations." Okoli, 440 S.W.3d at 617. Patel's report to Powell was a report to an individual who was "part of a governmental arm or entity authorized to conduct criminal law investigations." See id. Both Precinct 1 and Precinct 6, as governmental arms or entities, have "outward-looking powers" and authority to enforce and investigate violations of the Penal Code. See id.; see also, e.g., City of Celina v. Scott, No. 05-21-00823-CV, 2022 WL 1101589, at *4 (Tex. App.-Dallas Apr. 13, 2022, pet. filed) (mem. op.) (holding plaintiff's internal reports to another police officer and police chief were reports to individuals who were "part of a governmental arm or entity authorized to conduct criminal law investigations," because police department, as governmental arm or entity, had "outward-looking powers" and authority to enforce and investigate criminal violations).

Therefore, we conclude that Patel's report to Powell satisfied the requirement that she report to an "appropriate law enforcement agency."

4. Causation

Constable Trevino next argues that Patel cannot show that she suffered retaliation because of her report to Powell because the evidence does not show that the "relevant decision-makers" had knowledge of her report. But Constable Trevino does not address the statutory presumption of a causal connection provided in the Whistleblower Act.

The Whistleblower Act allows for a presumption of a causal connection if the employee is terminated or suspended not later than 90 days after the reported violation of law. Tex. Gov't Code § 554.004(a). That presumption is rebuttable. Id. The presumption does not shift the burden of proof and stands only in the absence of evidence to the contrary. City of Fort Worth v. Johnson, 105 S.W.3d 154, 163 (Tex. App.-Waco 2003, no pet.). Once sufficient evidence is produced to support a finding of the nonexistence of the causal connection between the termination or suspension and the reported violation of law, the presumption is rebutted, and the case then proceeds as if no presumption ever existed. Id.; Texas A & M University v. Chambers, 31 S.W.3d 780, 784 (Tex. App.-Austin 2000, pet. denied).

If no presumption is raised or the presumption is rebutted, the employee must produce some evidence to support a causal connection between the reports made and the employer's retaliatory conduct. This causation standard has been described as a "but for" causal nexus requirement. Rogers v. City of Fort Worth, 89 S.W.3d 265, 280 (Tex. App.-Fort Worth 2002, no pet.). An employee need not prove that his reporting of the illegal conduct was the sole reason for the employer's adverse action. Hinds, 904 S.W.2d at 636; Rogers, 89 S.W.3d at 280. A factfinder may not infer causation without some evidence to support such a finding. Zimlich, 29 S.W.3d at 68. Circumstantial evidence may be sufficient to establish a causal link between the adverse employment action and the reporting of illegal conduct. Id. at 69; Harris Cnty. v. Vernagallo, 181 S.W.3d 17, 25 (Tex. App.-Houston [14th Dist.] 2005, pet. denied); Rogers, 89 S.W.3d at 280.

Circumstantial evidence in this type of case includes: (1) knowledge of the report of illegal conduct; (2) expression of a negative attitude toward the employee's report of the illegal conduct; (3) failure to adhere to established company policies regarding employment decisions; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the adverse employment action is false. Zimlich, 29 S.W.3d at 69; Vernagallo, 181 S.W.3d at 25; Rogers, 89 S.W.3d at 280. "But evidence that an adverse employment action was preceded by a superior's negative attitude toward an employee's report of illegal conduct is not enough, standing alone, to show a causal connection between the two events. There must be more." Zimlich, 29 S.W.3d at 69.

a. Presumption of Causation

Patel argues she is entitled to the statutory presumption of causation because she was fired within 90 days after she reported Constable Trevino's conduct to Powell. As noted, Constable Trevino does not address the causation presumption in her briefing, nor did she address it in her plea to the jurisdiction before the trial court, instead focusing on her argument that there was no evidence the decision-makers had knowledge of Patel's report to Powell.

Patel alleged in her petition that she reported the details of Constable Trevino's misconduct to Powell during the first week of March 2018, and specifically, that on or about March 5th-9th, she reported "in detail [Constable Trevino's] abetting Victor's violation of the special terms of his probation" to Powell. Patel was terminated on June 1, 2018. Thus, Patel's termination occurred within 90 days after she reported Constable Trevino's conduct to Powell, and she is entitled to the statutory presumption of causation.

b. Was the Presumption Rebutted?

As noted, the presumption of causation afforded by the Whistleblower Act is rebuttable. Constable Trevino presented evidence in connection with her plea to the jurisdiction demonstrating that Patel was terminated because she engaged in an extramarital relationship in disobedience of Constable Trevino's orders, failed to report a public confrontation regarding the same relationship, attempted to interfere with an investigation into the public confrontation, and lied in her sworn statements about the relationship.

However, Patel alleged in her third amended petition, and attached relevant documents, that although she initially received a general discharge, Precinct 6 changed her designation to honorably discharged. Smith v. Abbott, 311 S.W.3d 62, 77 (Tex. App.-Austin 2010, pet. denied) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)) ("In resolving the jurisdictional challenges presented by the plea, we may also consider evidence that the pleader has attached to its petition or submitted in opposition to the plea.")). In her deposition, which Constable Trevino attached as evidence to her plea, Patel also testified that she received a general discharge from Precinct 6 but that it was overturned or reversed in 2019. Constable Trevino acknowledged the changed designation in her appellee's brief and at oral argument.¹⁷

17 Constable Trevino argues we cannot consider the documents attached to Patel's third amended petition because they were part of a settlement agreement entered into between Constable Trevino and Patel "to resolve the claims underlying Patel's administrative action to correct her F-5 designation." Even if the designation was changed as part of a settlement, a question we do not decide, that does not alter the effect of the changed designation, as those designations are statutorily defined. Constable Trevino further argues we should not consider the change in designation because Texas Occupations Code Section 1701.456 protects Constable Trevino from civil damages for a F-5 termination report made by an agency or person if the report was made in good faith. See Tex. Occ. Code § 1701.456(b)(1) ("A law enforcement agency, agency head, or other law enforcement official is not liable for civil damages for . . . a report made by that agency or person if the report is made in good faith."). We reject this argument at this stage because the basis for Patel's claims is that she was terminated for pretextual reasons, meaning her contention is the original general discharge was not made in good faith.

The Occupations Code defines "[g]enerally discharged" to mean a license holder who:

(A) was terminated by, retired or resigned from, or died while in the employ of a law enforcement agency and the separation was related to a disciplinary investigation of conduct that is not included in the definition of dishonorably discharged; or

(B) was terminated by or retired or resigned from a law enforcement agency and the separation was for a documented performance problem and was not because of a reduction in workforce or an at-will employment decision.

Tex. Occ. Code § 1701.452(2). In contrast, "[h]onorably discharged" means "a license holder who, while in good standing and not because of pending or final disciplinary actions or a documented performance problem, retired, resigned, or separated from employment with or died while employed by a law enforcement agency." Id. § 1701.452(1).

While Constable Trevino's evidence of other reasons for Patel's termination, in other circumstances, may be sufficient to rebut the presumption of causation, we hold here it is not sufficient based on the circumstances and evidence presented in this case. Cf. City of Fort Worth v. Johnson, 105 S.W.3d 154, 163-64 (Tex. App.- Waco 2003, no pet.) (concluding city's evidence that plaintiff was terminated for reasons other than reporting illegal conduct was sufficient to rebut presumption of causation between plaintiff's termination and report). Here, the evidence in the record, some of which was presented by Constable Trevino in support of her own plea, demonstrates that although Patel was initially terminated due "to a disciplinary investigation of conduct," her designation was later changed to honorable by Precinct 6. The effect of this change in designation means that she separated from employment "in good standing" and that her termination was "not because of pending or final disciplinary actions." Tex. Occ. Code § 1701.452(1), (2).

Based on this conflicting evidence related to the reasons for Patel's termination, we conclude that Constable Trevino did not offer sufficient evidence to rebut the statutory presumption of causation.¹⁸ Therefore, Patel is entitled to the presumption, and a fact question remains on the causal link between Patel's termination and report.

18 Even if Constable Trevino's evidence was sufficient to rebut the presumption of causation, we would conclude that the evidence related to Patel's change in designation, combined with the other evidence detailed below in relation to the but-for causation element of Patel's TCHRA's retaliation claim, was sufficient to raise a fact question as to causation on Patel's Whistleblower Act claim.

Because there is a fact issue on each element of Patel's Whistleblower Act claim, we conclude the trial court erred in granting Constable Trevino's plea to the jurisdiction on this claim.

We sustain Patel's second issue.

D. TCHRA Discrimination and Retaliation Claims

In her third issue, Patel argues the trial court had jurisdiction over her TCHRA discrimination and retaliation claims. In response, Constable Trevino argues the trial court lacked jurisdiction because: (1) Patel failed to present evidence of a prima facie case of discrimination; (2) Patel failed to present evidence of a prima facie case of retaliation; (3) Constable Trevino had legitimate nondiscriminatory reasons for Patel's termination; and (4) Patel did not provide evidence of pretext.

1. Applicable Law

The Labor Code waives immunity from suit and liability only when the plaintiff states a claim for conduct that would violate the TCHRA. Clark, 544 S.W.3d at 783. If a defendant's jurisdictional challenge negates an element of a plaintiff's prima facie case under the TCHRA, the plaintiff has a duty to raise a fact issue about discriminatory intent. Id. If the plaintiff fails to do so, we must affirm the trial court's dismissal of the suit because the trial court lacks jurisdiction. Id.

Employers must not retaliate or discriminate against a person who engages in a protected activity. See Tex. Lab. Code §§ 21.051, 21.055. Protected activities include (1) opposing a discriminatory practice, (2) making or filing a charge, (3) filing a complaint, or (4) testifying, assisting, or participating in an investigation, proceeding, or hearing. Id. § 21.055. To establish opposition to a discriminatory practice, the plaintiff must show that she "held a reasonable, good faith belief that the employer engaged in an activity made unlawful by" the Labor Code. Lee v. Harris Cnty. Hosp. Dist., No. 01-12-00311-CV, 2013 WL 5637049, at *5 (Tex. App.-Houston [1st Dist.] Oct. 15, 2013, pet. denied) (mem. op.).

An employer commits an unlawful employment practice if due to race, color, disability, religion, sex, national origin, or age, the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

Tex. Lab. Code § 21.051.

When there is no direct evidence of discrimination or retaliation, the employee must make a prima facie case under the burden-shifting mechanism in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 493-94 (Tex. App.-Dallas 2013, no pet.). "Under this framework, the plaintiff is entitled to a presumption of discrimination if she meets the 'minimal' initial burden of establishing a prima facie case of discrimination." Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012).

If Patel established a prima facie case of discrimination or retaliation, the burden shifted to Constable Trevino to articulate a legitimate, nondiscriminatory purpose for the adverse employment action. See Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 822-23 (Tex. App.-Houston [1st Dist.] 2012, pet. denied); McDonnell Douglas Corp., 411 U.S. at 802. If Constable Trevino articulated a legitimate, nondiscriminatory reason for the employment action, it became Patel's burden to show that the reason offered was a pretext for discrimination. Id. at 807; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001).

2. Discrimination

To establish a prima facie case of discrimination, a plaintiff is required to present evidence that she was (1) a member of a protected class, (2) qualified for the employment position at issue, (3) subjected to an adverse employment action, and (4) either replaced by someone outside her protected class or treated less favorably than a similarly situated employee outside of her protected class. Garcia, 372 S.W.3d at 642; AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008); Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); Metro. Transit Auth. of Harris Cnty. v. Ridley, 540 S.W.3d 91, 106 (Tex. App.-Houston [1st Dist.] 2017, pet. denied).

Constable Trevino contends that Patel failed to raise a fact issue on her prima facie case of discrimination under the TCHRA because there is no evidence in the record that she was replaced by someone outside her protected class. As noted, to establish a prima facie case of discrimination, a plaintiff is required to show she was treated differently than similarly situated persons outside of her protected class. Democratic Sch. Research, Inc. v. Rock, 608 S.W.3d 290, 308 (Tex. App.-Houston [1st Dist.] 2020, no pet.). A terminated employee can show that others who were similarly situated were treated more favorably by showing that the employee was replaced by someone outside of her protected class. Id. A terminated employee is "replaced" when another person fills the terminated employee's position and is assigned the terminated employee's former job duties. Id.

Patel cites the allegation in her third amended petition that after she was terminated, she was replaced by "a lesser qualified male Hispanic deputy, Joe Martinez." However, as Constable Trevino points out, there is no evidence in the record to support the allegation that Martinez replaced Patel. At her deposition, Patel did not testify that Martinez replaced her. She described him only as "the man that was dying to have my position." None of her other testimony about Martinez, which included references to him appearing in pictures with Victor, giving her a written reprimand in March 2018, and taking part in her termination proceedings on June 1, 2018, indicates (either explicitly or impliedly) that Martinez replaced her after she was terminated.

Because there is no evidence in the record to indicate Patel was replaced by a person outside her protected class, Patel failed to raise a fact question as to her discrimination claim under the TCHRA.

We overrule this portion of Patel's third issue.

3. Retaliation

For a prima facie case of retaliation, a plaintiff must establish that (1) she participated in a protected activity, (2) her employer took an adverse employment action against her, and (3) a causal connection existed between her protected activity and the adverse employment action. Clark, 544 S.W.3d at 782. The causation standard for the McDonnell Douglas prima facie case element is not onerous and can be satisfied merely by proving close timing between the protected activity and the adverse action. Id. However, if the employer produces evidence of a legitimate reason for the adverse action, under the federal standard, the employee must prove the stated reason for the adverse action was pretext and the adverse action would not have occurred "but for" the protected activity. Id.

The but-for causation standard is significantly more difficult to prove than prima facie causation. Id. In evaluating causation evidence in retaliation cases, we examine all the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee's protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer's stated reason is false. Id. at 790.

Constable Trevino does not challenge the first two elements of Patel's prima facie case, that Patel engaged in a protected activity or that she received an adverse employment action. She does, however, dispute the third element-the causal connection between Patel's protected activity and her termination. She also contends that she presented legitimate, nondiscriminatory reasons for Patel's termination and that Patel failed to raise a fact question that these reasons were pretext. Considering all the evidence and analyzing the above factors, we conclude that the evidence creates a fact issue on causation.

The causation standard for the McDonnell Douglas prima facie case element can be satisfied merely by proving close timing between the protected activity and the adverse action. Id. at 782. Temporal proximity is relevant to causation when it is "very close." Id. at 790. Here, Patel alleged in her third amended petition that she reported Constable Trevino's misconduct to Powell, in general terms, around Christmas 2017, and again in detail during the first week of March 2018. Further, in her deposition she testified that the first time she reported to Powell was in December 2017, but that she talked to him about it "[a] lot." It is undisputed that Patel was terminated on June 1, 2018. This three-month period between Patel's report and her termination is sufficiently close to establish the causal connection element of a prima facie case of retaliation. See, e.g., Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 305 (5th Cir. 2020) ("We have ruled, for example, that a six-and-a-half-week timeframe is sufficiently close, but that a five[-]month lapse is not close enough, without other evidence of retaliation, to establish the 'causal connection' element of a prima facie case of retaliation.").

Once Patel established her prima facie case of retaliation, the burden shifted to Constable Trevino to put forth evidence of a legitimate, nondiscriminatory reason for her actions. Constable Trevino presented evidence that Patel was terminated for violations of Precinct 6's Code of Conduct, Patel had an extramarital relationship with Powell in disobedience of Constable Trevino's orders, Patel failed to report a public confrontation regarding the same relationship, Patel interfered with an investigation into the public confrontation, and Patel lied in her sworn statements regarding the same.

The burden shifted to Patel to raise a fact issue that the nondiscriminatory reasons offered by Constable Trevino were pretextual and that she would not have been terminated but for opposing Constable Trevino's alleged discriminatory employment practices. See Clark, 544 S.W.3d at 790 ("Assuming Clark stated a prima facie retaliation case based on her termination, any presumption raised by that has been rebutted because Alamo Heights produced evidence of many performance reasons for terminating Clark's employment. Clark's burden to raise a fact issue that this explanation is a pretext and that she would not have been terminated but for filing an EEOC charge has, therefore, been activated.").

To show pretext, Patel points to the evidence that her discharge designation was changed from general to honorable. We agree with Patel that the change in designation demonstrates that although Patel was initially terminated due "to a disciplinary investigation of conduct," she ultimately separated from employment "in good standing" and that her termination was "not because of pending or final disciplinary actions." Tex. Occ. Code § 1701.452(1), (2). Thus, this evidence creates a fact issue as to whether the reasons offered by Constable Trevino for Patel's termination were pretext and false, one of the but-for causation factors to be considered.

Furthermore, consideration of other factors outlined in Clark demonstrate that there is a fact issue on whether Patel would not have been terminated but for opposing Constable Trevino's discriminatory practices.

For instance, there is at least some evidence that Constable Trevino knew of Patel's opposition to the discriminatory employment practices because Patel testified she voiced this opposition to Constable Trevino directly. Additionally, Patel testified that she voiced this opposition to Powell, who told Chief Shaw. According to Patel, Chief Shaw was a close friend of the Trevinos and told them about Patel's complaints. There is also some evidence that Constable Trevino expressed a negative attitude toward Patel's opposition. Patel testified that Constable Trevino's "attitude . . . change[d] the very next day" after she allegedly discovered Patel's report to Powell.

Based on this evidence, we conclude a fact issue exists as to whether Patel would not have been terminated but for her opposition to Constable Trevino's discriminatory practices. Thus, the trial court erred by granting Constable Trevino's plea to the jurisdiction as to this claim.

We sustain this portion of Patel's third issue.

Conclusion

We hold Constable Trevino's immunity was not waived for Patel's free speech claims under the Texas Constitution and Patel's discrimination claim under the TCHRA; consequently, we affirm the portion of the trial court's order granting Constable Trevino's plea to the jurisdiction as to those claims. However, we conclude that a fact issue exists as to Patel's Whistleblower Act claim and her retaliation claims under the TCHRA; consequently, we reverse the portion of the trial court's order granting Constable Trevino's plea to the jurisdiction on those claims and remand for further proceedings consistent with this opinion.