The Texas Whistleblower Act protects a public employee who makes a good faith report of a legal violation by his or her employer “to an appropriate law enforcement authority.” Tex. Gov’t Code § 554.002(a). Texas law has generally held that the “appropriate law enforcement authority” must be an authority that has outward-looking powers to investigate, enforce, and prosecute. But what happens if the agency the employee works for is the agency charged with investigating, enforcing, and prosecuting both within that agency and other agencies? That’s what happened in McMillen v. Texas Health & Human Services Commission.
McMillen worked for the Texas Health and Human Services Commission’s Office of the Inspector General. After he made a report of improper collection of payments from certain recipients’ Medicaid benefits to the head of the OIG’s Internal Affairs Division and to the Commission’s Executive Commissioner, he was terminated. He sued the Commission and its Executive Commissioner under the Whistleblower Act, which waives state immunity for good faith reports made to appropriate law-enforcement authority.
The trial court denied the Commission’s plea to the jurisdiction. The Austin Court of Appeals reversed after concluding that McMillen did not report to an appropriate law-enforcement authority. The Supreme Court of Texas reversed the court of appeals judgment. After noting that the Commission’s OIG was charged with enforcement authority, the Court acknowledged that its authority included internal compliance, but the OIG also has outward-looking powers that go beyond this agency. Accordingly, the Court held that McMillen had reported to an appropriate law-enforcement authority. The case was remanded back to the court of appeals for further proceedings. The Supreme Court’s opinion may be found here: McMillen opinion.