Texas Whistleblower Law

Asbestos Lawyer Austin Texas

Jan 5, 2013 — by Jeff Mundy
Tags: Whistleblower Asbestos

Specifically, a public employee who alleges a violation of the Whistleblower Act may sue the employing state or local government entity for the relief provided by the Whistleblower Act. TEX.GOV'T CODE ANN. § 554.0035. In determining whether an employee has alleged a violation occurred, we consider whether the factual allegations would actually constitute a violation of the Act. State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). However, a plaintiff need not prove his claim to satisfy the jurisdictional hurdle, and the burden of proof with respect to the jurisdictional facts does not involve a significant inquiry into the substance of the claims. Id.

Appropriate Law Enforcement Authority

Under the Whistleblower Act, a state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, an employee who makes a good faith report to an appropriate law enforcement authority that the entity or another employee has violated the law. TEX.GOV'T CODE ANN. § 554.002(a); Lueck, 290 S.W.3d at 878. As defined by the Whistleblower Act, a report is made to an appropriate law enforcement authority if the authority is "a 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. at § 554.002(b). Good faith, in the context of an appropriate law enforcement authority, means that: "(1) the employee believed the governmental entity was authorized to (a) regulate under . . . enforce . . . (b) investigate or prosecute a violation of . . . law; and (2) the employee's belief was reasonable in light of the employee's training and experience." Tex. Dept. of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002).

Franco could also have believed that the Asbestos Act and its implementing federal regulations empowered the District to regulate under or enforce the Act. In particular, the federal regulations promulgated by the EPA, which Franco produced as part of his response to the plea, require a local education agency to develop an asbestos management plan for each school, implement it, and maintain and update it.*fn5 40 CFR § 763.93(a)(1), (c), (d)(West 2012). Indeed, pursuant to Section 763.97, which is titled "Compliance and enforcement," it is unlawful for any local education agency to fail to develop a management plan and a local education agency is subject to civil and criminal penalties for violating the Act and its implementing regulations. Id. at § 763.97(a)(1)(iii), (a)(2), (b)(4), (c). In addition, the regulations promulgated by the EPA place much of the onus for asbestos response and remediation on a local education agency. Significantly, Section 763.84, which is titled "General local education agency responsibilities," requires a local education agency to:

(a) Ensure that the activities of any persons who perform [the responsibilities required by the regulations] are carried out in accordance with [them].

(c) Ensure that . . . building occupants, or their legal guardians, are informed . . . about inspections, response actions, and post-response action activities . . . .

(g)(1) Designate a person to ensure that requirements under [the regulations] are properly implemented.

(2) Ensure that the designated person receives adequate training to perform duties assigned under [the regulations] . . . [including knowledge of] . . . .

(v) Relevant Federal and State regulations concerning asbestos . . ..

40 CFR § 763.84(a), (c), (g)(1), (g)(2)(v).
Ysleta ISD v. Franco (Tex. App. - El Paso, 2012).

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