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Click here for the full text of this decision FACTS:Claude D’Unger was an officer and director of the Ed Rachal Foundation, a charitable organization that owns a ranch in Webb County used for wildlife and farming research studies. The ranch covers more than 100 square miles, including five miles along the Rio Grande. Due to its location, migrants from Mexico frequently cross the ranch on foot. D’Unger became concerned that the ranch’s foreman, Ed DuBose, was harassing migrants, and reported his concerns to Paul Altheide, the foundation’s chief executive officer. According to D’Unger, Altheide told him “to drop it,” which he took as an instruction not to report DuBose’s activities to any law enforcement officials. On Sept. 17, 1997, DuBose apprehended three teenage Mexican nationals at the ranch, handcuffed them, and turned them over to Border Patrol agents. When D’Unger saw a ranch report of the incident, he contacted Border Patrol agents, who told him they had no knowledge or record of the incident. Concerned that a crime might have been committed, D’Unger subsequently contacted a congressman, two sheriffs, the Texas Attorney General’s office, a senator, the IRS, a district judge and the Mexican Consulate about the matter. When Altheide learned of D’Unger’s activities, he first suspended him, and then fired him when he refused to resign. D’Unger sued the foundation for breach of contract and wrongful termination, and He sued Altheide for tortious interference. Shortly after he filed suit, the Border Patrol produced records under the Freedom of Information Act showing his concerns were unfounded � that DuBose had safely delivered the teenagers to Border Patrol custody the day he apprehended them. Nevertheless, a Nueces County jury later found for D’Unger on all his claims, and the trial court rendered judgment for $364,194.12 in lost wages and $193,001 in attorney’s fees. A unanimous court of appeals reversed the breach of contract and tortious interference claims. D’Unger challenges only the reversal of his contract claim, arguing that by agreeing to pay him a salary of $80,000 per year the foundation bound itself to a contract of renewable one-year terms. HOLDING:Reversed and rendered that D’Unger take nothing. D’Unger’s wrongful termination claim is based on the narrow exception to at-will employment created in Sabine Pilot Service Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). This exception makes it unlawful to terminate employees if the sole reason is their refusal to perform an illegal act. While D’Unger argues that the defendants committed many illegal acts, the only one he points to as the sole reason for his termination is “that he was terminated because he was trying to find out what had happened to the [three] Mexican nationals.” Sabine Pilot protects employees who are asked to commit a crime, not those who are asked not to report one. If failing to report a crime were itself a crime, then almost all whistleblowers could claim the Sabine Pilot exception. D’Unger points to no specific law that would criminalize his silence. The court of appeals erred in finding there was some evidence that D’Unger was asked to join a criminal conspiracy. There is no evidence D’Unger was asked to participate in any impending criminal acts or that he ever intended to do so. The court of appeals also believed D’Unger stood in jeopardy of the crime of misprision of felony. The crime requires knowledge of the actual commission of a felony, while in this case D’Unger concedes that “he did not report a crime, because a crime did not occur.” The jury was also instructed that D’Unger was wrongfully terminated if the sole reason for termination was his resistance to harassment intended to keep him from reporting a crime. But the only possible crimes related to this instruction are those criminalizing harassment or conspiracies to intimidate potential witnesses. There was no evidence D’Unger was himself a witness or was asked to tamper with any witnesses. D’Unger urges the court to adopt what he calls a “corollary” to Sabine Pilot adopted by the 13th Court of Appeals to protect employees who contact law-enforcement agencies to find out whether something they have been asked to do is illegal. But D’Unger testified only that he was trying to find out whether the actions of others were illegal, not whether his silence might be illegal. Even if this corollary correctly stated Texas law (an issue the court does not reach), there is no evidence that D’Unger falls within it. OPINION:Per curiam.

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