No Exit Via Immunity for AG's Office in Lawyer's Whistleblower Lawsuit

No Exit Via Immunity for AG's Office in Lawyer's Whistleblower Lawsuit

For the second time in 14 months, the Texas Office of the Attorney General has lost in its effort to derail a former assistant AG’s whistleblower lawsuit with a claim of governmental immunity.

In a June 16 opinion in Office of the Attorney General v. Ginger Weatherspoon, the Fifth Court of Appeals in Dallas affirmed the 68th District Court’s April 16, 2013, order denying the OAG’s plea to the jurisdiction.

Weatherspoon, who worked in the OAG’s child support division from July 2006 until November 2008, filed her lawsuit in May 2009. She alleged in her amended original petition that two senior regional attorneys in the OAG’s Dallas child support office “confined her against her will in an attempt to obtain a perjured affidavit” about a judge. [See "Whistleblower Suit Against the OAG Moves Forward," Texas Lawyer, May 6, 2013, page 5.]

According to the Fifth Court’s opinion, the OAG contends that the trial court erred in concluding that Weatherspoon made a good faith report to an appropriate law enforcement agency of a violation of law involving attempts to force her to sign an allegedly false affidavit. The OAG also contends that the trial court erred in determining that it had jurisdiction over Weatherspoon’s claims brought under the Texas Whistleblower Act.

“Because we conclude Weatherspoon sufficiently alleged a claim under the act to invoke subject matter jurisdiction, we affirm the trial court’s order,” Justice David Evans wrote for the Fifth Court panel that heard the OAG’s appeal.

“It affirms the trial court has jurisdiction to try the case,” said Steven Thorpe, who argued on Weatherspoon’s behalf at the Fifth Court, of the decision.

Thorpe, a partner in Thorpe Hatcher & Washington in Dallas, said the case was ready for trial before the OAG appealed 68th District Court Judge Martin Hoffman’s denial of its summary judgment motion and plea to the jurisdiction. Thorpe said it’s his opinion that no further appeals are available to the OAG on the interlocutory issue.

“They may think differently,” he said.

Lauren Bean, the OAG’s deputy communications director, wrote in an email, “We are reviewing the ruling and considering our options.”

Affidavit Dispute

The Fifth Court’s opinion provides the following background based on Weatherspoon’s allegations: In 2008, James Jones and Harry Monck, then senior regional attorneys with the OAG, ordered Weatherspoon to report interactions she had with a state district judge and emailed her an affidavit to sign about her conversations with the judge. Weatherspoon repeatedly refused to sign the affidavit because she believed it misrepresented various facts and mischaracterized the tone and nature of her conversation with the judge. Jones then ordered her to stay in a room at the OAG’s administrative office until she wrote a statement about the judge.

Monck, who now works in the OAG’s Fort Worth office, did not return a telephone call for comment. Efforts to locate Jones were unsuccessful.

According to the opinion, Weatherspoon contends that she reported her allegations that a public employee had committed violations of criminal law, including abuse of official capacity, official oppression and subornation of perjury, to numerous people, including the head of her division at the OAG. Weatherspoon further alleges that she followed the OAG’s policies in making the reports but was retaliated against and eventually terminated after she reported her allegations.

Texas Government Code §554.0035 expressly waives sovereign immunity for claims properly brought under the Texas Whistleblower Act.

As noted in the opinion, the OAG contends that Weatherspoon’s allegations do not show that she made her reports to an “appropriate law enforcement authority,” as required by the Whistleblower Act. The OAG “relies heavily on cases holding that reports made internally to one’s own employer are generally insufficient to invoke the act’s protections,” Evans wrote.

The opinion pointed out that Weatherspoon reported to her division head, as required by the OAG’s policies, and the division head was required to report to the OAG’s Office of Special Investigations, which is an appropriate law enforcement authority.

“Accordingly, there was more than a mere possibility that Weatherspoon’s report would reach persons with specific authority to investigate or prosecute the alleged criminal violations,” Evans wrote.

Mary Alice Robbins is an Austin-based freelance author and a former Texas Lawyer senior reporter.

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