author: EVELYN V. KEYES, Justice.

text:
    Flor de Maria Navarro SANCHEZ, Appellant, v. Jose Fernandez Galan PALAU, Appellee.
    No. 01-08-00648-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 10, 2010.

      Monte L. Swearengen, Gray & Becker, P.C., Austin, TX, for Appellant.
    Andres Perez-Chaumont, Law office of Andres Chaumont, Armando Lopez, Armando Lopez, P.C., Houston, TX, for Ap-pellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Flor de Maria Navarro Sanchez (Navarro), appeals the trial court’s domestication of a 2008 Mexican divorce judgment, filed by appellee, Jose Fernandez Galan Palau (Galan). In two issues, Navarro contends that: (1) the trial court erred in failing to vacate the Mexican divorce judgment because it was domesticated after the parties were divorced in Travis County, Texas; and (2) the Mexican divorce judgment was not subject to domestication pursuant to the Uniform Foreign Country Money-Judgment Recognition Act.

We vacate and dismiss.

Background

Navarro and Galan were married in San Luis Potosí, Mexico, on October 23, 1950. When they married, both parties agreed that their owned and acquired property would remain separate. On December 11, 2003, Navarro filed for divorce in Mexico, claiming that Galan was in an adulterous relationship and was no longer supporting Navarro. Navarro requested thirty percent of Galan’s assets in her petition for divorce. On February 28, 2006, Navarro’s request for divorce was denied by the Mexican court, due to unproven facts.

After being denied a divorce in Mexico, Navarro relocated to Austin, Texas, and filed for divorce in the 353rd Judicial District Court of Travis County, Texas, on May 4, 2006. Her grounds for divorce were insupportability due to discord or conflict of personalities, adultery on the part of Galan, and cruel treatment by Ga-lan toward her. Navarro again requested a division of the property acquired by Ga-lan during their marriage. .Galan was personally served in Travis County, Texas, with the Original Petition for Divorce on May 4, 2006. Galan made a special appearance to the Travis County court on May 15, 2006, and the court dismissed the divorce petition for lack of personal jurisdiction over Galan on June 27, 2006. Navarro then filed a motion for new trial with the Travis County court, asserting that Galan was subject to personal jurisdiction because he had been served with process while present in Texas. The motion for new trial was granted on August 30, 2006.

Parallel to the proceedings in Travis County, on May 23, 2006, Galan filed for divorce in San Luis Potosí, Mexico, on the ground that he and Navarro had been separated for more than two years. The summons for divorce was delivered to Navarro on June 22, 2006, a few days before the Travis County court dismissed her divorce petition for lack of jurisdiction over Galan. On May 1, 2007, Galan filed an Affidavit of Filing Foreign Judgment Pursuant to the Uniform Enforcement of Foreign Judgments Act in the 126th Judicial District Court of Travis County, Texas, with regard to the 2006 denial of the divorce Navarro had sought in Mexico. On July 13, 2007, the Travis County court held that the Mexican judgment was entitled to full force and effect, but it was not res judicata as to the Travis County suit because the Travis County suit was based on grounds not available under Mexican law or facts.

The Travis County divorce case was set for trial on October 22, 2007. On that same date, Galan filed a notice of removal to federal court, stating that the Texas court did not have personal jurisdiction over him and that the 2006 Mexican judgment barred the Texas proceeding. The federal court found that Galan acted in bad faith and that he removed the case simply to delay the Travis County court proceedings and to help the Mexican court proceedings finish first, as he expected a result in his favor from that court. The case was remanded back to state court.

The divorce case in Travis County, Texas, was heard on November 5 and 6, 2007. Both Navarro and Galan appeared in person and through their attorneys. The court granted Navarro a divorce and divided the marital property between them. Regarding the date of the judgment, the decree states, “This divorce [was] judicially PRONOUNCED AND RENDERED ... on November 6, 2007, and further noted on the Court’s docket sheet on the same date but [was] SIGNED on the 16 [sic ] day of November, 2007.” Navarro and her attorney signed the order as approved as to form only — Galan and his attorney did not. In November 2007, UBS Financial Services, Inc. (“UBS”) filed an interpleader concerning a couple of accounts over which Navarro and Galan were both claiming a right. At a hearing on March 31, 2008, Navarro and Galan both represented to the court that they wanted to settle the UBS matter “to allow the divorce decree to become final” so they could obtain a ruling from the appellate court. The UBS matter was resolved at the hearing to the satisfaction of all parties and the trial court’s order was approved by both Navarro’s and Galan’s attorneys on April 1, 2008.

On April 28, 2008, Bank of America intervened in the Travis County divorce case. On May 13, 2008, the Travis County court granted Bank of America’s inter-pleader. Galan requested that the Travis County court issue findings of fact and conclusions of law. In its First Amended Findings of Fact and Conclusions of Law, dated May 7, 2008, the Travis County court found that the 2006 Mexican judgment denying Navarro’s request for divorce did not award any property or characterize any of the property as separate or community. The Travis County court concluded that the Mexican divorce case was not res judicata as to any issue in the Travis County divorce case. Additionally, the Travis County court found that it had jurisdiction over both parties and the subject matter of the suit.

Around the same time that Bank of America intervened in Travis County, the Mexican court granted Galan’s request for divorce on April 29, 2008. In response to Navarro’s argument that the Travis County divorce case prevailed, the Mexican court responded that Travis County never had jurisdiction over Galan. The Mexican decree states, “[T]he plaintiff [Galan], at all times, maintained that the said [Travis County] Court did not have jurisdiction, and if he responded to the claim filed against him, ... it was in a preventive manner.” The court further explained that, “according to whatever might be decided in that aspect by the Court of the State of Texas, U.S.A., it can be seen in the foregoing that the plaintiff has not expressly submitted to the jurisdiction of the said Court.” The court did not order any division of property and, since no culpability was found in the case, it did not assign any payment of cost and expenses.

On April 30, 2008, the day after the 2008 Mexican court entered the decree, Galan filed it for domestication with the 270th Judicial District Court of Harris County, Texas, pursuant to the “Uniform Enforcement of Foreign Judgments Act.” The full decree was filed in Spanish; only the last page of the decree was translated to English for filing. The notice of filing was mailed to Navarro at her address in Travis County, Texas, on April 30, 2008.

On May 8, 2008, Navarro filed a motion for new trial in the Harris County court, asserting three grounds for relief. First, she pointed out that the decree was not fully translated from Spanish to English. Second, she included a copy of the Travis County original petition and decree and asked the Harris County court to find that the 2008 Mexican divorce decree was of no effect. Third, Navarro argued that the enforcement of foreign country judgments is limited to money judgments as provided in Chapter 36 of the Texas Civil Practice and Remedies Code, also known as the Uniform Foreign Country Money-Judgments Recognition Act (UFCMJRA). See Tex. Civ. Prac. & Rem.Code Ann. §§ 36.001-36.008 (Vernon 2008). On May 12, 2008, Galan supplemented the filing of the Mexican divorce decree, pursuant to the UFCMJRA.

On May 23, 2008, Navarro filed a “Motion to Transfer Venue, or Alternatively Motion to Vacate Judgment, or Alternatively, Motion to Dismiss or, Alternatively First Amended Motion for New Trial” in the Harris County court. Navarro claimed that Harris County was not a proper venue because neither party had ever resided there and that the UFCMJRA required the judgment to be domesticated in the county of residence of the party against whom recognition was being sought. Navarro further argued that the Travis County divorce action was filed before Galan’s Mexican divorce action and that the Travis County divorce decree was finalized before the 2008 Mexican judgment. Navarro again argued that the UFCMJRA only applies to money judgments.

On May 28, 2008, Galan responded to Navarro’s motions, stating that the UFCMJRA found in Chapter 36 of the Civil Practice and Remedies Code was applicable to the Mexican divorce decree, that Harris County was a proper venue, and that the Travis County judgment was not finalized before the Mexican judgment. On August 20, 2008, after various other filings, the Harris County court denied all of Navarro’s motions and domesticated Ga-lan’s Mexican divorce judgment. Navarro filed a notice of appeal on July 23, 2008, appealing the Harris County court’s domestication of the 2008 Mexican divorce decree.

Uniform Foreign Country Money-Judgment Recognition Act

In her second issue, Navarro argues that the Mexican divorce judgment was not subject to domestication pursuant to the UFCMJRA. See Tex. Civ. Prac. & Rem.Code Ann. §§ 86.001-36.008.

A. Standard of Review

This Court has found that the issue of the enforcement of a foreign country judgment is properly framed as a question of law. Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 708 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Thus, we review de novo a trial court’s ruling on recognition of a foreign country judgment. Courage Co. v. Chemshare Corp., 93 S.W.3d 323, 331 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing Reading & Bates Constr. Co., 976 S.W.2d at 708).

Additionally, “[statutory construction is a legal question, which is reviewed de novo to ascertain and give effect to the Legislature’s intent.” HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009). When reviewing a statute, we first look at the plain and common meaning of the statute’s words. Id.

B. Analysis

Navarro contends that the Harris County trial court erred in domesticating the 2008 Mexican divorce judgment under the UFCMJRA because that statute does not apply to divorce judgments from foreign countries. Navarro further argues that the 2008 Mexican divorce judgment does not contain any provision that grants or denies a sum of money.

A judgment creditor may seek recognition of a foreign country judgment in Texas by filing “a final, authenticated copy of the foreign judgment in the judgment debtor’s county of residence (‘the Texas filing’).” Hernandez v. Seventh Day Adventist Corp., Ltd., 54 S.W.3d 335, 336 (Tex.App.-San Antonio 2001, no pet.) (citing Tex. Civ. Prac. & Rem.Code Ann. §§ 36.0041-42). The judgment debtor must also “serve the judgment debtor with notice of the Texas filing.” Id. “The Texas filing symbolizes both a plaintiffs original petition and a final judgment: the filing initiates the recognition proceeding, but also instantly creates an enforceable Texas judgment.” Id. (citing Dear v. Russo, 973 S.W.2d 445, 446 (Tex.App.-Dallas 1998, no pet.)).

The UFCMJRA applies to a foreign country judgment. Tex. Civ. Prac. & Rem.Code Ann. § 36.002. A foreign country judgment is “a judgment of a foreign country granting or denying a sum of money other than a judgment for ... support in a matrimonial or family matter.” Id. § 36.001(2). Recognition of a foreign country judgment is conclusive between the parties “to the extent that it grants recovery or denial of a sum of money.” Id. § 36.004; Reading & Bates Constr. Co., 976 S.W.2d at 706; see Dart v. Ba rlaam, 953 S.W.2d 478, 479-80 (Tex.App.Fort Worth 1997, no writ) (describing judgment recognized under UFCMJRA as “[a] foreign country judgment assessing money damages.”).

The UFCMJRA expressly states that it applies only to “a judgment of a foreign country granting or denying a sum of money,” and it further excludes “a judgment for support in a matrimonial or family matter.” See Tex. Civ. Prac. & Rem.Code Ann. § 36.001(2). The UFCMJRA’s express terms clearly provide that it applies only to money judgments. See id.; Brosseau v. Ranzau, 81 S.W.3d 381, 388 (Tex.App.-Beaumont 2002, pet. denied) (holding, when appellant was not asking for enforcement of portion of foreign country judgment that pertained to money, that the “UFCMJRA pertains to a money judgment” and that appellant’s case did not fall within parameters of Act). Thus, we conclude that the plain language of the UFCMJRA does not authorize the trial court to recognize the 2008 Mexican divorce decree.

We sustain Navarro’s second issue.

Because Navarro’s second issue is dis-positive of the case, we decline to discuss Navarro’s first issue arguing that the divorce granted in Travis County preceded the 2008 divorce granted in Mexico and thus precluded the Harris County court from domesticating the 2008 Mexican judgment.

Conclusion

We vacate the Harris County court’s judgment and dismiss Galan’s petition to domesticate the 2008 Mexican divorce decree. Any outstanding motions are dismissed as moot.

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 36.001-36.008 (Vernon 2008).

      . While Navarro established residency in Travis County, Texas, she retained her Mexican citizenship.

      . Navarro was awarded 62.5% of the community estate and Galan was awarded 37.5% of the community estate.

      .While the judgment purports to be final on this date, there is dispute between the parties as to when it actually became final, due to interpleaders that were filed. Both parties agreed on the record in Travis County court that they intended to finalize the judgment on March 31, 2008.

      . The actual day the interpleader was filed is not specified in the record.

      . The date of the intervention is provided by Galan in a pleading filed with the Harris County court. The actual pleading filed by Bank of America is not in the record provided.

      . The order of the Travis County court granting the interpleader does not appear in the record. This date is taken from Galan's brief.

      . The pleading does not specifically state that the court refers to the 2006 judgment; however, the finding directly preceding this finding states that Navarro was denied a divorce in Mexico, which refers to the 2006 judgment.

      . The Travis County court is presumably referring to Navarro’s 2006 case, as there is no evidence in the record that the Travis County court was aware of the final judgment issued in Galan’s 2008 case; however, the findings do not specifically identify which case the Travis County court examined.

      . Galan also apparently filed a notice of appeal of the Travis County judgment to the Third Court of Appeals in Austin, Texas on June 12, 2008 that was still pending at the time he filed his brief in August, 2008. The record does not contain any specific information regarding that appeal; it is only mentioned in Galan's pleadings in the Harris County court and in his brief on appeal.

      . We note that the Uniform Enforcement of Foreign Judgments Act, found in Chapter 35 of the Texas Civil Practice and Remedies Code, pertains only to courts of other states within the United States, not courts of foreign countries. See Tex. Civ. Prac & Rem.Code Ann. §§ 35.001-35.008 (Vernon 2008). Thus, as we discuss below and as the parties’ subsequent filings all assert, Galan sought to file the Mexican divorce decree pursuant to the provisions found in Chapter 36 of the Civil Practice and Remedies Code, which is known as the Uniform Foreign Country Money-Judgments Recognition Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 36.001-36.008 (Vernon 2008).

      . On March 20, 2009, the Supreme Court of the State of San Luis Potosí, Mexico affirmed the lower Mexican court's judgment, stating that Galan did not voluntarily submit to the jurisdiction of the Travis County court. The Mexican court also stated that the Travis County judgment had no effect on the Mexican case because Article 121 of the Political Constitution of the United Mexican States reads, “The laws of a State shall have effect only in its own territory and therefore cannot be compulsory beyond its borders.”

      . We recognize that several courts have implied that abuse of discretion is the correct standard of review of a trial court’s ruling on the recognition of a foreign country judgment, but this Court has "disagree[d] with that suggestion and point[ed] out that a trial court has no ‘discretion’ to improperly determine the law or misapply the law to the facts.” Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 708 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).

      . Galan argues that Navarro did not raise the issue of the inapplicability of the UFCMJRA to the 2008 Mexican decree in either of her motions presented to the Harris County court and therefore failed to preserve the error for review. Galan is incorrect. Navarro did raise the issue of inapplicability in both her Motion for New Trial and in her "Motion to Transfer Venue, or Alternatively Motion to Vacate Judgment, or Alternatively, Motion to Dismiss, or Alternatively First Amended Motion for New Trial.”

      . We also note that Texas adopted the Uniform Foreign County Money-Judgments Recognition Act (UFCMJRA) in Chapter 36 of the Civil Practice and Remedies Code in 1981. See Tex. Civ. Prac. & Rem.Code Ann., Uniform Foreign Money-Judgments Recognition Act, Table of Jurisdictions Where Act Has Been Adopted (Vernon 2008); Tex. Gov't Code Ann. § 311.028 (Vernon 2005) ("A uniform act included in a code shall be construed to effect its general purpose to make uniform the law of those states that enact it.”); Unif. Foreign Money-Judgments Recognition Act 13 U.L.A. pt. 2, p. 25 (Supp. 2009). In 2005, the Uniform Foreign-County Money Judgments Recognition Act was revised ("2005 Uniform Act”). Unif. Foreign-Country Money Judgments Recognition Act § 1, 13 U.L.A. pt. 2, p. 9 (Supp. 2009). The purpose of the revision was:
      not to depart from the basic rules or approach of the 1962 Act, which have withstood well the test of time, but rather to update the 1962 Act, to clarify its provisions, and to correct problems created by the interpretation of the provisions of that Act by the courts over the years since its promulgation.

        Id. at 8. One clarification made by the most recent version Uniform Act was to the applicability of the foreign-country judgment, and that version expressly provides:
      (b) This [act] does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent that the judgment is:
      (3) a judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations.

        Id. § 3. Our readings of both Chapter 36 of the Civil Practice and Remedies and the 2005 Uniform Act draw us to the conclusion that the UFCMJRA does not apply to a divorce decree from a foreign country.


source: Caselaw Access Project

author: LEE ANN DAUPHINOT, Justice.

license: Public Domain

text:
    CITY OF CARROLLTON, Appellant, v. HEB PARKWAY SOUTH, LTD. and HEB/Medical Parkway, Ltd., Appellees.
    No. 2-09-179-CV.
    Court of Appeals of Texas, Fort Worth.
    June 17, 2010.
    Rehearing Overruled July 29, 2010.
    Reconsideration En Banc Denied July 29, 2010.

      George Staples, Daniel R. Barrett, Fredrick “Fritz” Quast, Jenny Gravley, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, TX, R. Clayton Hutchins, City Attorney, Carrollton, TX, for Appellant.
    Eddie Vassallo, Charles A. Salazar, Law Offices of Eddie Vassallo, P.C., Jenna P. Wright, Law Offices of Jenna Wright, P.C., Dallas TX, Richard H. Kelsey, Kelsey, Kelsey & Hickey, PLLC, Denton, TX, for Appellees.
    PANEL: DAUPHINOT, McCOY, and MEIER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

This appeal arises from the trial court’s denial of the plea to the jurisdiction filed by the City of Carrollton (“the City”) on takings claims brought by HEB Parkway South, Ltd. and HEB/Medical Parkway, Ltd. (collectively, “HEB”). In two issues, the City argues that the trial court erred by denying its plea to the jurisdiction on HEB’s regulatory takings claims and on HEB’s physical takings claim. Because we hold that HEB’s regulatory takings claims are unripe and that HEB did not raise a physical takings claim, we reverse the trial court’s order and render judgment dismissing HEB’s takings claims.

I. Facts and Procedural History

From 1989 to 1992, the City of Carroll-ton made improvements to Hebron Parkway (“the parkway”), a street in the City. During construction, the City realigned a portion of Dudley Branch Creek, one of four major drainageways crossing the City. As early as 1992, erosion began occurring in the portion of Dudley Branch where construction had been done. In 1993, the City received approval to sell $510,000 in bonds to fund erosion control measures in Dudley Branch. The City did not, however, fix the problem in Dudley Branch at that time; the City contended that it did not construct erosion control measures because the property owner would not give the City the necessary easement.

HEB was formed in 1999 to develop property owned by Maurice Moore. MEM-CO Management Group, LLC, manages assets of the Moore family, including HEB. HEB owns al40.304-acre tract of land and a 27.59-acre tract of land south of the parkway (“the property”). Dudley Branch runs through that property.

In 2000, the City amended its stormwa-ter and flood protection ordinance. The ordinance requires property developers of channel sections to “consider and account for channel stabilization in their design[,] ... whether they are left in their natural condition or are modified in any manner.” If the developer owns all or a portion of a channel section or floodplain area affected by the ordinance, the developer is required to improve the drainage channel or portion of the channel on the proposed development site so as to reduce water velocity in that channel section to 6.0 feet per second or below. The ordinance also imposes other requirements, depending on whether the property incorporates all or only a portion of the channel section. The city manager has the discretion “to require the implementation of the portion of these requirements as deemed necessary.”

The ordinance further states that “[a]ny person aggrieved by a decision of the City Manager may appeal to the Planning and Zoning Commission [“P & Z”] for a variance. The decision of [P & Z] shall be final.” The ordinance next reiterates that “[P & Z] ... shall hear and decide requests for variances from the requirements of [the stormwater] ordinance.”

In November 2000, HEB submitted a preliminary development plat for a single family home development on its property. City staff recommended approval of the plat, subject to staff stipulations, including a stipulation that “[t]he Homeowners Association shall be required to enter into a perpetual maintenance agreement with the City for the ... floodplain.” At HEB’s request, P & Z approved removing this language from the “stipulations” section of the staff report and adding to the “informational comments” section a comment that “[t]his development must comply with the provisions of [the stormwater ordinance].”

Concerned that it would have to pay for improvements to Dudley Branch that HEB believed were the City’s responsibility, HEB halted development proceedings while it met with City staff about the stormwater ordinance’s application. In a January 2001 agreement, the City agreed to study the ongoing flood plain issues to facilitate the development of the property.

Throughout 2001, HEB representatives met with City staff about the application of the stormwater ordinance to the proposed development. At a work session in 2001, the city council considered options for amending the ordinance. In September 2001, HEB expressed its support for the amendment in a letter to the mayor. The mayor responded by letter stating that amending the ordinance was not warranted and would not happen at that time. The director of public works also indicated in a letter that the ordinance would not be amended. After receiving the mayor’s letter, HEB requested another meeting, but the City’s attorney telephoned HEB’s attorney and advised him that the City would not participate in additional meetings.

In March 2002, HEB and the City entered into a development agreement under which HEB agreed to construct the erosion control improvements to Dudley Branch. Under the plan, the City agreed to pay $510,000 (the amount approved for bonds in 1993), and HEB agreed to pay the rest of the cost. In January 2003, HEB submitted an engineered plan for erosion control on Dudley Branch, and the City approved the plan. HEB completed the improvements and then brought suit against the City for breach of contract and for inverse condemnation under the federal and state constitutions. The City filed a plea to the jurisdiction on all of HEB’s claims except damages for breach of contract. The trial court denied the motion, and the City now appeals that denial with respect to HEB’s inverse condemnation claims.

II. Regulatory Takings Claim

In its first issue, the City argues that the trial court did not have subject-matter jurisdiction over HEB’s federal and state inverse condemnation claims alleging an exaction because these claims are permanently unripe. Specifically, the City argues that these claims are unripe because the evidence conclusively established that HEB never sought a final decision regarding the application of the City’s regulations to HEB’s property. Because the storm-water ordinance at issue assigned P & Z the authority to grant a variance, and because the record does not show that HEB sought a variance or that HEB’s seeking such a variance would be futile, we agree.

Standard of Review

Ripeness is an element of subject matter jurisdiction. Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. In determining whether a trial court has subject matter jurisdiction, we construe the pleadings liberally and accept as true the factual allegations in the pleadings. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. We take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor.

The governmental unit asserting that the trial court lacks jurisdiction is required to meet the summary judgment standard of proof for its assertion. As with a summary judgment motion, once the government meets that burden, the burden shifts to the plaintiff to show that there is a disputed material fact on the jurisdictional issue. If the evidence raises a fact question about jurisdiction, the trial court must deny the plea to the jurisdiction. But if the evidence fails to raise a fact question on jurisdiction, as with a motion for summary judgment, the trial court rules on the plea to the jurisdiction as a matter of law.

Regulatory Takings

When a landowner’s property has been taken or damaged for public use without compensation, the landowner may bring an inverse condemnation proceeding. The proceeding is “inverse” because the property owner brings the suit, as compared to a condemnation proceeding brought by a governmental entity to appropriate private property for a public purpose.

Takings may be physical (that is, “a direct government appropriation or physical invasion of private property”) or regulatory (that is, based on a government regulation). A regulatory takings claim may be based on a number of different theories. One basis for a regulatory takings claim occurs when a government “requires an owner to suffer a permanent physical invasion of her property — -however minor.” For example, a law that requires a landlord to permit a cable television company to install its facilities upon the landlord’s property constitutes a com-pensable taking. Under both the federal and Texas constitutions, this type of regulation constitutes a per se taking for which the landowner must be compensated. Another category of per se taking under both the federal and Texas constitutions, sometimes referred to as a “Lucas — type ‘total regulatory taking,’” occurs when a government regulation deprives a landowner of all economically beneficial use of the owner’s property.

A regulation will also constitute a taking when it does not deprive a landowner of all of the property’s economically beneficial use, but it does unreasonably interfere with the landowner’s right to use and enjoy his property. This type of claim is sometimes called a “Penn Central” takings claim, and it will generally arise when a government has denied a landowner approval to develop his property.

The United States Supreme Court has recognized one other theory on which a regulatory takings claim may be based, resulting not from an outright denial of approval for development but from the government’s conditional approval. A takings claim may arise if a government conditions its approval for development on the landowner providing or doing something — that is, on an exaction. The Court has found that a land use exaction constituted a taking in two cases, both of which “involved dedications of property so onerous that, outside the exactions context, they would be deemed per se physical takings.”

The Supreme Court of Texas has addressed an exaction as a taking under the Texas constitution. In Stafford, because neither party argued that the analysis would be different under the federal and Texas constitutions, the court assumed that if the government action at issue constituted a compensable taking under the federal constitution, it also constituted a compensable taking under the Texas constitution. Likewise in the case before this court, neither party argues that the federal standard for determining whether an exaction constitutes a compensable taking does not apply to claims under the Texas constitution.

The Supreme Court of Texas has expanded on United States Supreme Court jurisprudence to address the issue of whether an exaetion-as-a-taking claim may be based on something other than a requirement that a landowner dedicate real property to public use. That court held in Stafford that a takings claim-may also be based on a requirement that the landowner spend private funds on property that already belongs to the public. In that case, the Town of Flower Mound, Texas, (“the Town”) required the developer landowner to rebuild a road abutting the residential subdivision proposed by the landowner. This improvement was required by the Town’s land development code. The developer objected to the condition “at every administrative level in the Town” and requested that the Town grant an exception that was available under the code, all to no avail. The developer rebuilt the road as requested and then brought an inverse condemnation claim. The supreme court stated that for purposes of determining when a government’s conditioning approval of development on an exaction constitutes a com-pensable taking, “we see no important distinction between a dedication of property to the public and a requirement that property already owned by the public be improved.” Based on that holding in Stafford, HEB argues that the exaction in this case constituted a compensable taking.

Ripeness Requirement for Regulatory Takings Claims

As with any other claim, under both federal and Texas law, a regulatory takings claim must be ripe before a trial court will have subject matter jurisdiction over the claim. In analyzing the ripeness of a challenge to a land use regulation under the Texas constitution, we apply federal jurisprudence.

Under federal law, as a prerequisite to the ripeness of regulatory takings claims, there must be “a final decision regarding the application of the regulations to the property at issue.” That is, “a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation.” Generally, until these procedures have been followed, no regulatory taking has been established because the extent of the restriction on the property is not yet known. In other words, “ ‘[a] court cannot determine whether a regulation goes “too far” unless it knows how far the regulation goes.’ ”

Usually a “final decision” for purposes of a regulatory takings claim means “both a rejected development plan and the denial of a variance from the controlling regulations.” But there is no requirement that an applicant make futile variance requests or reapplications. Thus, the requirement that a request for a variance be denied is applied flexibly so as to give the government an opportunity to “ ‘grant different forms of relief or make policy decisions which might abate the alleged taking.’ ” The term “variance” encompasses “ ‘other types of permits or actions [that] are available and could provide similar relief.’” If a plaintiff brings a facial challenge to a regulation (rather than an as-applied challenge), no final decision about the regulation’s application is required. HEB brought an as-applied challenge to the ordinance in this case.

Neither the United States Supreme Court nor the Supreme Court of Texas has expressly stated that the standard for determining ripeness of other regulatory takings claims applies to land-use exaction takings claims. But we see no reason to apply a different standard, as the purpose of the ripeness requirement for regulatory takings cases generally would also apply to land-use exactions cases. That is, whether the regulation is used to deny development approval or to exact some public benefit, we do not know if the regulation goes too far if we do not know how far it goes, and the government must be given the chance to abate the alleged taking. In the context of land-use exactions cases, what acts by the government will constitute a denial of a development plan will, as in other regulatory takings cases, turn on the facts of each case. Although a landowner may not receive an outright denial of approval of a plan that does not include the exaction, the government may give conditional approval in a manner that makes reasonably clear that the conditional approval is the functional equivalent of a denial of any plan that does not include the exaction. Just as in other regulatory takings cases, the landowner must object to the exaction so as to give the government the opportunity to exercise its discretion and to establish the permissible uses of the property “to a reasonable degree of certainty.”

HEB’s Development Application

In this case, HEB did not submit a development application that excluded the requested improvements and that was denied by P & Z, and it is P & Z, not staff, that by City ordinance has authority to deny plat applications. Furthermore, even if comments by City staff or council regarding their interpretation of the ordinance could constitute a preemptive denial of such an application, notwithstanding P & Z’s authority over such matters, it is uncontroverted that HEB never applied for a variance.

HEB argues, however, that it did not have to request a variance because doing so would have been futile. HEB contends that it worked with City staff to try to avoid having to comply with the ordinance. The record shows that the City council would not amend its ordinance and that the City staff and City council showed every sign of expecting HEB to comply with the ordinance in accordance with City staffs interpretation of that ordinance. The City’s attorney even told HEB that the City would not have any more meetings with HEB. But all of HEB’s attempts to avoid application of the ordinance involved trying to amend the ordinance or the City’s interpretation of the ordinance, rather than seeking a variance.

A city’s refusal to amend its ordinance is not a P & Z board’s refusal to grant a variance. The ordinance in this case expressly provides that P & Z may grant a variance and that P & Z’s decision on the matter is final. P & Z is not the same as City staff or City council. Although the record shows City council’s position on amending the ordinance, nothing in the record shows that P & Z would not have granted a variance to HEB.

HEB’s representative testified in the hearing on the plea to the jurisdiction that

[w]e are going forward on the basis that no variance is requested because no variance is requested by any developer in the City.... That’s not how the ordinance is operated, and there is no creek that has been repaired by the City ... under any variance is done under the ordinance [sic].

But he went on to acknowledge that, with respect to other completed developments that were subject to the ordinance, “I’m not sure that I have knowledge of whether variances were sought.” Nothing in the record demonstrates that other developers had requested variances from the same ordinance and that P & Z never granted those requests.

HEB’s representative also stated that he had discussed the option of a variance with the City’s director of public works, “and ... we knew we didn’t have any staff support for a variance.” But the opinion of staff is not the same as a determination from P & Z. This case is different from Stafford, in which the developer sought an exception to the applicable regulation, which was denied. Although Patterson testified that the City’s attorney informed HEB’s attorney that there would be “no more meetings,” his testimony does not indicate that HEB sought a meeting about the possibility of obtaining a variance or about anything other than changing the ordinance or City staffs interpretation of the ordinance. And nothing in the record indicates that the City’s attorney had been authorized to speak on behalf of P & Z with respect to variance requests.

HEB argues that the staff recommendation stated that no permit application would be approved unless HEB paid for the creek improvements. But the staff recommendation on its face does not show that the City or P & Z would not allow HEB to develop its property without paying for creek improvements. The relevant staff comment simply states that the development “must comply with the provisions of [the stormwater ordinance,]” without stating what compliance would entail or whether staff would recommend denial of a variance, let alone what P & Z would do. And this language was apparently included at HEB’s request. Originally, the staff stipulations stated that “[t]he Homeowner’s Association shall be required to enter into a perpetual maintenance agreement with the City for the area shown as floodplain.” HEB requested that the stipulation be moved to “informational comments” and be amended. Staffs response to the requested change included this note:

The approved stipulation [as originally worded] reflects staffs interpretation of [the stormwater ordinance]. The ordinance provides the city with the ability to ‘elect’ who is responsible for the maintenance of the drainage area. Staff concurs that this determination is more appropriate during the review of the final plat and engineering plans. [Emphasis added].

Rather than stating that the City was at that point requiring HEB to improve the creek, it appears that the City was leaving open until the final platting stages the question of who would have to pay for maintenance of drainage areas in the development. It does not show that at the time HEB filed its preliminary plat applications, the City would not approve any development unless HEB paid for creek improvements and that P & Z would not grant a variance.

HEB compares this case to Mayhew and argues that under that case, its regulatory takings claims are ripe. In Mayhew, landowners seeking to build a planned development on their property worked for years with the Town of Sunnyvale to obtain a permit to develop their property. The Mayhews spent over $500,000 conducting studies and preparing reports in support of their proposed development. P & Z recommended denying the Mayhews’ application. The Mayhews then met with a Town committee that had been appointed to negotiate with them and agreed to change their application in attempt to gain approval from the Town council. The amended development plan represented the minimum development that the May-hews believed would make an economically viable use of their land. But although the Mayhews amended their application to conform with the tentative agreement resulting from the negotiations, the Town council rejected the Mayhews’ modified application. The supreme court held that under these facts, the Mayhews’ claim was ripe.

HEB asserts the facts in Mayhew are similar to the facts in this case. It argues that it hired experts to meet with City officials over a span of more than two years, costing HEB more than $600,000, and that the City gave no indication of approving any plan that did not include HEB constructing improvements to Dudley Branch. Thus, HEB argues, as in Mayhew, it was not required to submit an application that did not include the improvements, and any request for a variance would have been futile.

But this case is factually distinguishable from Mayhew. Mayhew involved a planned development, and in a planned development, “the density, type, and location of particular uses in the development are left to the planning process and are determined through negotiations between the developer and the town.” In this case, HEB wished to construct a residential subdivision, not a planned development, and its negotiations with the City centered on its efforts to have the ordinance amended or to change City staffs interpretation of the ordinance, not on the type of development and uses that would be included on the property. Furthermore, in Mayhew, a holding that the developer had not exhausted its administrative remedies would have required the developer to expend resources and the town to spend time considering a development proposal that, due to economic impracticability, the developer would never actually develop. And, importantly, “there was no issue that the proper entity had not rejected the development application.” In this case, however, nothing shows that HEB would not have developed the property if it had to pay for the improvements — in fact, the opposite is true because it did develop the property and pay for the improvements. And HEB also failed to show that it sought relief from the application of the stormwater ordinance from the right entity.

In a post-submission letter brief, HEB notes that the City had stated in its brief that the plat as ultimately constructed was dictated by federal requirements and that the type of project was under a nationwide project through the United States Army Corps of Engineers, which only allowed for a particular type of project. HEB asserts that P & Z could not waive these requirements. HEB appears to argue that it was not required to file an application or variance because the City could not waive the federal requirements. But even if federal requirements dictated what kind of improvements had to be made, this does not mean that the City could not elect to make the improvements itself or that the parties could not have reached some mutually-satisfactory agreement for the improvements. And HEB claims in its letter brief that certain City officials could provide relief, acknowledging that the federal creek improvement requirements did not require HEB to pay for them. HEB makes no explanation for why, given federal Corps of Engineers requirements, City council would have authority to amend the stormwater ordinance and City staff would have authority to interpret the ordinance in a manner that did not require HEB to pay for the improvements, but P & Z would not have authority to grant a variance. The problem, once more, is that HEB never asked the appropriate agency about a variance in the first place.

The ordinance allows P & Z to grant a variance, and HEB never asked for one. Instead, it entered into a development agreement with the City in which it agreed to construct the improvements. Because ripeness requires a showing that the landowner asked for a variance or that requesting one would have been futile, to affirm the trial court’s denial of the plea to the jurisdiction, this court would have to hold that as long as one unit of city government wants to condition permit approval on an exaction, it is not necessary for the landowner to request relief from a different government unit with express authority to grant that relief. We decline to do so. Accordingly, we hold that under the facts of this case, HEB’s regulatory takings claims under the federal and state constitutions are not ripe, and, because it is too late to obtain a variance to avoid constructing the improvements, the claims can never become ripe. We sustain the City’s first issue.

III. Physical Takings Claim Based on Damage to Property

In its second issue, the City argues that the trial court does not have subject matter jurisdiction over HEB’s inverse condemnation claim based on physical damage because the evidence conclusively establishes that HEB did not own the property subject to this suit at the time the events complained of occurred.

In its petition, HEB asserted that

[t]he City’s failure to develop and maintain drainage facilities sufficient to accommodate the water run-off created by and after the development of [the parkway] as well as the negligent construction and maintenance of City-owned drainage channel through HEB’s property resulted in the taking, damaging and/or diminution in value of the property in violation of the United States and Texas Constitutions.

HEB further alleged that “[t]he City’s illegal use of drainage over, across and through HEB’s property reduced HEB’s developable property and increased HEB’s development costs, thereby devaluating the whole property.”

But in HEB’s response to the City’s plea to the jurisdiction alleging that HEB had no standing on a physical takings claim based on events prior to 1999, HEB stated that it had standing to assert takings claims that occurred prior to 1999 but that it “[did] not seek to recover compensation for a taking that occurred prior to” that time. In its brief on appeal, HEB again argues that it does not lack standing to assert takings claims that occurred prior to 1999, but its arguments in that respect all relate to the City’s application of the stormwater ordinance and HEB’s regulatory takings claim. HEB specifically states that “HEB seeks to recover damages resulting from the City’s exaction of improvements developed and financed by HEB” and that “[t]here is no evidence to establish HEB did not own the property at the time the exaction claim, was ripe for adjudication.” [Emphasis added.] HEB uses the City’s acts in constructing the parkway and realigning Dudley Branch as taking control of Dudley Branch and thereby, under HEB’s interpretation of the stormwater ordinance, obligating the City to maintain Dudley Branch. HEB does not appear to point to the City’s actions prior to 1999 for any other purpose than to support its exaction claim.

From its brief, then, it appears that HEB did not assert a separate physical takings claim apart from its regulatory takings claim based on an exaction. That is, HEB’s statements about the City’s actions in constructing and failing to maintain the parkway and related drainage improvements were in support of its regulatory takings claim rather than an assertion of a separate takings claim based on physical damage to HEB property. We therefore overrule the City’s second issue.

IV. Conclusion

Having sustained the City’s first issue and overruled the City’s second issue, we reverse the trial court’s denial of the City’s plea to the jurisdiction. We render judgment dismissing HEB’s regulatory takings claims, and we remand this cause to the trial court for further proceedings on HEB’s remaining claims.

      . Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999).

      . City of Arlington v. Randall, 301 S.W.3d 896, 905 (Tex.App.-Fort Worth 2009, pet. filed).

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

        . Id.

      . City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 387 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

      . Compare id. (reviewing the trial court's judgment on an inverse condemnation claim brought by a property owner), with Bauer v. Lavaca-Navidad River Auth., 704 S.W.2d 107, 108 (Tex.App.-Corpus Christi 1985, writ ref’d n.r.e.) (reviewing the trial court’s award of damages in a condemnation proceeding brought by a state conservation and reclamation district).

      . Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 2080-81, 161 L.Ed.2d 876 (2005).

      . See City of Argyle v. Pierce, 258 S.W.3d 674, 683 (Tex.App.-Fort Worth 2008, pet. dism'd); see also Lingle, 544 U.S. at 547, 125 S.Ct. at 2087 (discussing theories of takings under the federal constitution).

      . Lingle, 544 U.S. at 538, 125 S.Ct. at 2081; see also Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 671 (Tex.2004).

      . See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421, 102 S.Ct. 3164, 3168, 73 L.Ed.2d 868 (1982).

      . See Sheffield, 140 S.W.3d at 671 (“The direct, physical effect on property, though short of government possession, makes the regulation categorically a taking.”).

      . Lingle, 544 U.S. at 538, 548, 125 S.Ct. at 2081, 2087; Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 56 (Tex.2006).

      . Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle, 544 U.S. at 537-38, 125 S.Ct. at 2081 (noting that a regulation that "goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central); Hallco Tex., Inc., 221 S.W.3d at 56.

      . See, e.g., Mayhew, 964 S.W.2d at 929, 937 (evaluating a town’s denial of development approval under Penn Central standards and noting that in order for a regulatory takings claim to be ripe, there usually must be a rejected development plan).

      . See Lingle, 544 U.S. at 548, 125 S.Ct. at 2087; see also Town of Flower Mound v. Stafford Estates L.P., 135 S.W.3d 620, 630 (Tex.2004) (distinguishing between a takings claim based on an exaction and takings claim based on " 'unreasonable regulatory interference,’ ” that is, a "Penn Central” takings claim).

      . See Lingle, 544 U.S. at 547, 125 S.Ct. at 2087 (discussing Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), and Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987)).

      . Stafford, 135 S.W.3d at 623.

      . Id. at 630-31.

      . See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702-03, 119 S.Ct. 1624, 1635-36, 143 L.Ed.2d 882 (1999) (stating that the court had not extended Do-lan 's "rough proportionality” test beyond the context of exactions, which it referred to as "land-use decisions conditioning approval of development on the dedication of property to public use”).

      . Stafford, 135 S.W.3d at 640.

      . Id. at 622.

      . Id. at 623.

      . Id. at 624.

      . Id.

      . Id. at 640.

      . Mayhew, 964 S.W.2d at 928 (noting that ripeness is an element of subject matter jurisdiction).

      . Id. at 928-29.

      . Id. at 929.

      . Palazzolo v. Rhode Island, 533 U.S. 606, 620-21, 121 S.Ct. 2448, 2459, 150 L.Ed.2d 592 (2001).

      . Id.

      . Id. at 622, 121 S.Ct. at 2460 (quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986)).

      . Mayhew, 964 S.W.2d at 929.

      . Id.

      . Id. (quoting S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir.1990), cert. denied, 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991)).

      . Id. at 930 (quoting S. Pac. Transp. Co., 922 F.2d at 503).

      . Id.

      . See, e.g., Stafford, 135 S.W.3d at 638 (noting that there is no practical difference between "approval on condition and denial for want of the condition”); Mayhew, 964 S.W.2d at 929 (stating broadly that "in order for a regulatory takings claim to be ripe, there must be a final decision regarding the application of the regulations to the property at issue”); see also City of Dallas v. Chicory Court Simpson Stuart L.P., 271 S.W.3d 412, 421-22 (Tex.App.-Dallas 2008, pet. denied) (applying the ripeness standards of regulatory takings claims generally to an exactions takings claim); but see Del Monte Dunes, 526 U.S. at 703, 119 S.Ct. at 1635 (distinguishing between exactions cases and denial-of-development cases).

      . Stafford, 135 S.W.3d at 638 (noting that there is no practical difference between conditional approval and denial for want of a condition).

      . Palazzolo, 533 U.S. at 620, 121 S.Ct. at 2459 (noting that a takings claim is ripe "once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty”).

      .Carrollton, Tex., Subdivision Ordinance, art. III., § A (1993) (stating that a plat application is considered filed when it has been submitted to the planning department and placed on the agenda for P & Z and that a plat shall be considered approved if it is not disapproved by P & Z within thirty days of filing), amended by Carrollton, Tex., Ordinance 3301 (2009).

      . See Stafford, 135 S.W.3d at 624.

      . See Desoto Wildwood Dev., Inc. v. City of Lewisville, 184 S.W.3d 814, 826 (Tex.App.Fort Worth 2006, no pet.) (stating that because no evidence showed that the city attorney had been authorized by the city council to act for it on a matter, the attorney’s statements were not binding on the matter).

      . Mayhew, 964 S.W.2d at 925-26.

      . Id. at 926.

      . Id.

      . Id.

      . Id. at 931.

      . Id.

        .Id. at 932.

      . Id. at 931.

      . Desoto, 184 S.W.3d at 826 (distinguishing Mayhew).

      . Id.


author: TERRY JENNINGS, Justice.

text:
    TEXAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. Oliver OKOLI, Appellee.
    No. 01-07-00103-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 17, 2010.

      Russ Wayne Harris, Office of the Attorney General, General Litigation Division, Austin, TX, for Appellant.
    Okon J. Usoro, Okon J. Usoro, P.C., Houston, TX, Oliver Okoli, Alief, TX, for Appellee.
    Panel consists of Justices JENNINGS, ALCALA, and HANKS.
   OPINION

TERRY JENNINGS, Justice.

In this interlocutory appeal, appellant, the Texas Department of Human Services (“TDHS”), challenges the trial court’s order denying its plea to jurisdiction filed in the underlying Texas Whistleblower Act lawsuit brought against it by appellee, Oliver E. Okoli. In three issues, TDHS contends that Okoli did not, as required by the Whistleblower Act, report a violation of law to an appropriate law enforcement authority or present sufficient evidence to invoke the limited waiver of sovereign immunity provided by the Whistleblower Act and his fraud and malice claims are barred by sovereign immunity.

On June 28, 2007, this Court issued an opinion in which we held that the Whistle-blower Act “makes the only jurisdictional prerequisites to maintaining a whistleblower suit the plaintiffs status as a public employee and the sufficiency of his whis-tleblower allegations” and “whether Okoli actually reported to an appropriate law enforcement authority, or whether he had a good-faith belief that TDHS was such an authority, is an element of his whistleblower claim and cannot be a jurisdictional prerequisite to suit.” Tex. Dep’t of Human Servs. v. Okoli, 263 S.W.3d 275, 282 (Tex.App.-Houston [1st Dist.] 2007), rev’d, 295 S.W.3d 667 (Tex.2009). Because we concluded that TDHS, in its jurisdictional plea, asserted and presented evidence on only these non-jurisdictional elements of Okoli’s whistleblower claim, we overruled TDHS’s issues in which it challenged the trial court’s order denying its plea to the jurisdiction. Id.

The Texas Supreme Court, on August 28, 2009, issued its opinion in State v. Lueck, in which it held that the elements of a whistleblower claim “can be considered to determine both jurisdiction and liability.” 290 S.W.3d 876, 883 (Tex.2009) (citing Tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004)). On the same day, the supreme court, in a per curiam opinion, reversed this Court’s opinion in Okoli, explaining that, under Lueck, whether Okoli made “a good faith report of a violation of law to an appropriate law enforcement authority is a jurisdictional question.” Tex. Dep’t of Health and Human Servs. v. Okoli 295 S.W.3d 667, 668 (Tex.2009). The supreme court, “for the reasons explained in Lueck,” remanded the Okoli case to this Court “to determine whether Okoli has alleged a violation under the Act.” Id (citing Tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004)).

We affirm the order of the trial court.

Background

As summarized in our original opinion, Okoli, in his petition, alleges that TDHS hired him as a caseworker trainee and ultimately promoted him to a “Worker II” position, whose job functions included determining the eligibility of TDHS clients for its social programs. According to Oko-li, Brendell Carroll, his TDHS supervisor, engaged in fraudulent conduct in processing benefits including, among other things, “falsifying dates and documents to avoid delinquencies in the handling of clients’ cases.” Okoli first complained about the date-falsification activity to Carroll, who retaliated against him with certain workplace measures. Okoli then reported the date-falsification activity to Carroll’s supervisor, John Robinson, and then to Robinson’s manager, Carol Maxie. Shortly after his report to Maxie, TDHS terminated Okoli’s employment. Okoli then pursued an administrative grievance procedure to contest his termination, but the termination decision was sustained. Okoli further alleges that when he “reported the unlawful practices in the unit” to Robinson, TDHS terminated his employment, ostensibly “for violating TDHS work rules.” Okoli asserts a claim against TDHS for violations of the Whistleblower Act as well as “cause[s] of action” for fraud and malice.

In its jurisdictional plea, TDHS argued that the trial court lacked subject-matter jurisdiction over Okoli’s whistleblower claim because TDHS and “administrators at [TDHS] were not the proper law enforcement authorities for reports of ‘Unlawful Use of Funds’ ” and Okoli did not have a good-faith belief that TDHS and his TDHS supervisors were such authorities. TDHS also argued that the trial court lacked subject-matter jurisdiction over Ok-oli’s claims for fraud and malice because the Texas Tort Claims Act (“TTCA”) does not waive immunity from suit for intentional wrongs like these.

In his response, Okoli asserted that Carroll and other TDHS employees violated section 12.002 of the Texas Human Resources Code, entitled “Unlawful Use of Funds.” Okoli argued that his report to TDHS was to an appropriate law enforcement authority because TDHS is the governmental entity authorized to regulate under and enforce the subject law. Okoli also argued that he, in good faith, believed that TDHS and his supervisors were authorized to regulate under and enforce section 12.002 because his work rules required employees to make reports of fraudulent conduct to their supervisors. He noted that TDHS is authorized to “refer and fund district attorney’s special welfare fraud units for prosecution.” Okoli also noted that TDHS admitted that “TDHS, through its Office of Investigation (‘OIG’), investigates the law” that he reported had been violated.

The trial court denied TDHS’s jurisdictional plea.

Standard of Review

We review de novo a trial court’s ruling on a jurisdictional plea. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). When reviewing a trial court’s ruling on a plea, “we first look to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of the plaintiffs and looking to the pleader’s intent,” and “we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised.” City of Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex.2009); see also Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001) (“[WJe consider the facts alleged by the plaintiff[s] and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.”). In considering this evidence, we “take as true all evidence favorable to the nonmovant” and “indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Kirwan, 298 S.W.3d at 622.

Immunity from suit is properly asserted in a plea to the jurisdiction. Lueck, 290 S.W.3d at 880. The State and its agencies like TDHS are immune from suit and liability in Texas unless the Legislature expressly waives sovereign immunity. Id.; see also Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2009) (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”). A statute waives immunity from suit, immunity from liability, or both. Lueck, 290 S.W.3d at 880. Immunity from suit presents “a jurisdictional question of whether the State has expressly consented to suit,” whereas immunity from liability concerns “whether the State has accepted liability even after it has consented to suit.” Id. In statutes in which immunity from suit is waived to the extent of liability, “immunity from suit and liability are co-extensive.” Id. (citing Tex. Civ. PRAC. & Rem.Code Ann. § 101.025(a) (Vernon 2005)).

When a party in a plea to the jurisdiction challenges the pleadings, we determine if the pleadings contain facts that “affirmatively demonstrate” the trial court’s jurisdiction to hear the case. Id. at 884. When the facts underlying the merits and subject-matter jurisdiction are intertwined, “the State may assert immunity from suit by a plea to the jurisdiction, even when the trial court must consider evidence ‘necessary to resolve the jurisdictional issues raised.’” Id. at 880 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000)).

The Whistleblower Act

In its first two issues, TDHS argues that the trial court erred in denying its plea to the jurisdiction because Okoli’s “supervisors are not appropriate law enforcement authorities” and Okoli has “not brought forth sufficient evidence to invoke the limited waiver of sovereign immunity provided in the Whistleblower Act.” TDHS asserts that it does not regulate or enforce violations of criminal law and Okoli did not have a good faith belief that TDHS supervisors are appropriate law enforcement authorities. TDHS further asserts that “[ajlerting an employer to the employer’s own conduct is insufficient as a matter of law to meet the [Whistleblower] Act’s ‘law enforcement’ requirement,” and, as a result, Okoli’s “supervisors and other TDHS administrators, who were allegedly involved in the illegal acts, were not appropriate law enforcement authorities for purposes of their conduct.”

The immunity provision in the Whistleblower Act provides:

A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.

Tex. Gov’t Code Ann. § 554.0035 (Vernon 2004). Section 554.0035 prescribes two requirements to waive a governmental entity’s immunity and vest a court with jurisdiction: (1) the plaintiff must be a public employee and (2) he must allege a “violation of this chapter.” Lueck, 290 S.W.3d at 881. The standard for a “violation of this chapter” is found in section 554.002 of the Whistleblower Act. Id. Thus, the elements of section 554.002 are “necessarily” considered as jurisdictional facts “in order to ascertain what constitutes a violation, and whether that violation has actually been alleged.” Id.

Section 554.002 provides,

(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, 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.
(b) In this section, 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.

Tex. Gov’t Code Ann. § 554.002 (Vernon 2004).

Under section 554.002(a), “good faith” means “that (1) the employee believed that the conduct reported was a violation of law and (2) the employee’s belief was reasonable in light of the employee’s training and experience.” Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex.1996). The test’s first element is subjective and ensures that a Whistleblower claimant believed that he was reporting an actual violation of the law, while the test’s second element is objective and ensures that the claimant received the Act’s protection only if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of the law. Id. at 784-85; City of Houston v. Levingston, 221 S.W.3d 204, 218-219 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Similarly, under section 554.002(b), “good faith” means that (1) the employee subjectively believed the governmental entity was authorized to regulate under or enforce the law alleged to be violated in the report, or investigate or prosecute a violation of criminal law; and (2) the employee’s belief was objectively reasonable in light of the employee’s training and experience. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320-21 (Tex.2002); Levingston, 221 S.W.3d at 218.

Here, TDHS argues that Okoli’s report to his supervisors did not constitute a report of a violation of law to a law enforcement authority because TDHS’s responsibilities do not include the regulation, enforcement, investigation, or prosecution of reports of unlawful conduct like that alleged by Okoli; its “general duties” are limited to administering assistance to those in need of its programs. TDHS further argues that an employee with Okoli’s training and experience could not have a good faith belief that TDHS had the authority to regulate, enforce, or prosecute a violation of criminal law for “misuse of funds” because he would know that these powers belong “to any number of prosecutorial agencies such as the Attorney General’s Office, District Attorney’s Office, the Department of Justice, or at the very least TDHS’s Office of the Inspector General.” (emphasis added). TDHS concedes that the OIG at TDHS was “charged with the responsibility to investigate waste, abuse, and fraud in all health and human services systems.” It argues, however, that because Okoli characterized the reported conduct of his supervisors as “criminal,” and “criminal violations of the law [that] could result in penitentiary time, [Okoli] should have ... reported [the conduct] to the previously mentioned agencies, not simply to three persons in his chain of command at TDHS.” In support of its argument that Okoli could not have had a good faith belief that the TDHS administrators were appropriate law enforcement authorities, TDHS notes that Okoli previously signed a TDHS memorandum regarding work rule violations that stated that when such violations also constituted a violation of the penal code, “a referral to OIG [would] be made for possible prosecution.” Citing Needham, TDHS contends that the Texas Supreme Court has “rejected the notion that a report to one’s superiors is sufficient” to obtain the protection of the Whistleblower Act. 82 S.W.3d at 320-21.

In response, Okoli asserts that TDHS is the governmental entity authorized to regulate, enforce, investigate, or prosecute “welfare fraud,” and, in determining if he made a report to an appropriate law enforcement authority, we should focus on the governmental entity, i.e., TDHS, not the individual supervisors to whom he made his report. Okoli emphasizes that he reported an unlawful use of funds, which violates section 12.002 of the Texas Human Resources Code and which provides,

(a) A person charged with the duty or responsibility of administering, disbursing, auditing, or otherwise handling the grants, funds, or money provided for in this title commits an offense if the person misappropriates the grants, funds, or money or by deception or fraud wrongfully distributes the grants, funds, or money to any person.
(b) An offense under this section is a felony punishable by confinement in the Texas Department of Criminal Justice for a term of not less than two or more than seven years.

Tex. Hum. Res.Code Ann. § 12.002 (Vernon Supp.2009).

In affidavits submitted to the trial court, Okoli testified that Carroll, his supervisor, among other acts, falsified the dates on applications for benefits. Okoli had previously been instructed that changing file dates on these applications constituted criminal conduct, he was to report all unlawful acts to his supervisor for further action, and he was “then [to] go up the chain of command” if he was dissatisfied with his supervisor’s response. Okoli denied that he had received training to follow any other whistleblowing procedures. Ok-oli also noted that he had been instructed to follow this protocol in prior, unrelated instances of reporting unlawful conduct or misconduct at TDHS. Okoli, based upon his training, after learning of the alleged unlawful conduct, first reported the unlawful conduct to Carroll, then to Robinson, and then to Maxie. He explained that, but for the termination of his employment, he “would have continued” with his reports “up the chain of command.” Okoli averred that he reasonably believed that TDHS was authorized to regulate, enforce, investigate, or prosecute “the culprits” under section 12.002 of the Human Resources Code.

The record before us contains evidence that TDHS, or at least a division of TDHS, the OIG, is an appropriate law enforcement authority that is authorized to investigate allegations of fraud and “unlawful use of funds” associated with the social programs administered by employees of TDHS. TDHS even concedes this fact in its briefing when it argues that Okoli would have known “that the power to regulate, enforce, investigate, and prosecute penal laws” belonged to any number of prosecutorial agencies and, “at the very least TDHS’s Office of the Inspector General.” (emphasis added). The record before us contains evidence that, in making his alleged reports of criminal conduct to his immediate supervisor, and the two higher supervisors in his chain of command, Okoli believed that he was making reports to persons capable of investigating the alleged criminal conduct. Okoli testified to these critical facts by affidavit, and, under the applicable standard of review, we must accept his testimony at this stage as true. See City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex.2009) (noting that standard of review applicable to plea to jurisdiction mirrors standard of review of summary judgments and stating that court must take as true all evidence favorable to claimant, “indulging every reasonable inference and resolving any doubts in [his] favor”). The record contains evidence that Okoli was instructed by TDHS to report the criminal conduct at issue in this case “up his chain of command,” starting with his immediate supervisor, and, according to Okoli’s testimony, he followed the required procedures in reporting the alleged criminal conduct. With Okoli’s pleadings and the evidence as summarized above in mind, we consider whether the three TDHS supervisors to whom Okoli made the reports can themselves be considered appropriate law enforcement authorities under section 554.002 and, alternatively, whether Okoli could have, in good faith, concluded that these supervisors were appropriate law enforcement authorities to which to report such conduct.

The Texas Supreme Court’s opinion in Lueck provides guidance on this question. In Lueck, the supreme court held that a Texas Department of Transportation (“TxDOT”) employee was not entitled to the protection of the Whistleblower Act because the employee’s report, which was contained in an e-mail to his supervisor, concerned violations of regulations or internal policy recommendations — not actual violations of the law and not the kind of reports “that the Whistleblower Act was designed to protect.” 290 S.W.3d at 885. The court further noted that, even if the employee had reported a violation of the law, the employee had not made a report to an appropriate law enforcement authority. Id. at 885-86. An examination of the pleadings and the attached e-mail revealed that the e-mail demonstrated that the supervisor, who was the head of a division within TxDOT, was not an appropriate law enforcement authority because he “could neither regulate nor enforce the law that [the plaintiff] alleged had been violated.” Id. The e-mail indicated that the plaintiff employee knew that the supervisor “was not the proper authority within TxDOT to regulate the reported violations” because the employee recommended in the e-mail that his supervisor have the report available when discussing the matters “with other TxDOT divisions.” Id. at 886 (emphasis added). Thus, the e-mail “conclusively established]” that the employee “could not have formed a good-faith belief’ that his supervisor “was authorized to enforce such violations.” Id.

Under Lueck, as well as precedent from this Court, we should consider not simply whether TDHS itself could be characterized an appropriate law enforcement authority, but rather whether the supervisors themselves (to whom the reports were made) were the appropriate law enforcement authorities to investigate the alleged criminal matters that were the subject of Okoli’s complaints. Id.; see also Levingston, 221 S.W.3d at 218-219, 224 (noting that division manager of governmental entity to whom report was made had power to investigate reported violations of Texas Penal Code as well as legal duty to file charges and provide evidence; stating that, based upon manager’s “supervisory position,” manager “was certainly in the best position to receive such reports on behalf’ of governmental entity).

Accepting as true Okoli’s testimony that he was required by TDHS policy to report the subject criminal matters “up the chain of command,” we hold that the supervisors were appropriate law enforcement authorities within TDHS and, alternatively, that Okoli had a good faith belief that he was reporting the alleged criminal conduct to appropriate law enforcement authorities. If TDHS compelled Okoli to bring such criminal matters to the attention of three supervisors within his chain of command, as testified to by Okoli, and if TDHS policy contemplates referral of criminal matters to the OIG at TDHS for investigative purposes, which is undisputed, Okoli, under the plain language of the Whistleblower Act, is entitled to the Act’s protection for whistleblowing about the alleged unlawful conduct to those in his chain of command.

TDHS’s reliance upon Needham is misplaced. In Needham, a plaintiff TxDOT employee reported to his TxDOT supervisor a co-worker’s suspected driving while intoxicated incident. 82 S.W.3d at 319. The court noted that “the particular law the public employee reported violated is critical to the determination” of whether the governmental entity could be an appropriate law enforcement authority. Id. at 320. The court concluded that TxDOT was not an appropriate law enforcement authority because it had “no authority to regulate under or enforce” the “driving while intoxicated laws” or “to investigate or prosecute these criminal laws.” Id. The court noted that, “[a]t most,” TxDOT had authority to “regulate and investigate” employee conduct for internal disciplinary reasons, which was not enough to provide the reporting employee protection under the Whistleblower Act. Id.

Here, in stark contrast, Okoli has not made a report of criminal conduct that was outside the scope of the investigative powers of TDHS. Rather, Okoli alleges that TDHS employees, in processing benefits administered by TDHS, unlawfully used funds in violation of section 12.002 of the Texas Human Resources Code. If Okoli, like the plaintiff in Needham, had alleged that a co-worker had engaged in criminal conduct unrelated to TDHS’s mission and beyond the investigative powers of TDHS, Needham would compel the dismissal of his Whistleblower suit.

However, Okoli’s claims are more akin to those considered by this Court in Levingston, 221 S.W.3d 204. In Levingston, we held that the City of Houston’s Bureau of Animal Regulation and Care (“BARC”) could be considered an appropriate law enforcement authority for the plaintiff employee’s reports of animal abuse and violations of the City Code, the Texas Penal Code, and the Texas Health and Safety Code. Id. at 225. In support of our holding, we cited evidence showing that BARC had the authority to regulate under or to enforce sections of the Health and Safety Code and the authority to investigate violations of criminal law under the city code and penal code. Like the employee in Levingston, Okoli has alleged criminal conduct that his employing governmental entity had the authority to investigate.

TDHS’s assertion that an employee is not entitled to the protection of the Whis-tleblower Act as a matter of law when the employee alerts his employer to the employer’s own unlawful conduct lacks any support in the language of section 554.002. The fact that an employee makes a report of a violation of law to his employer or superior regarding the work being performed by the governmental entity that employs him does not automatically disqualify that employee from protection under the Whistleblower Act. Moreover, the fact that the criminal conduct being reported might also provide a basis for internal employee discipline does not automatically render the Whistleblower Act inapplicable. See Levingston, 221 S.W.3d at 221 (“Just because many of Leving-ston’s reports to Nix ‘concerned employee performance failures’ does not mean that his reports of the above cited instances did not concern ‘a violation of any law.’ ”).

Finally, TDHS cites Duvall v. Texas Department of Human Services in support of its argument that TDHS administrators are not appropriate law enforcement authorities under the Whistleblower Act. 82 S.W.3d 474 (Tex.App.-Austin 2002, no pet.). In Duvall, the plaintiff TDHS employee reported inaccuracies in statistical methods used by a division of TDHS to compile “response time reports.” Id at 476. In his original petition, the plaintiff identified the criminal offense of tampering with a governmental record as the law that he believed TDHS had violated. Id. at 477 (citing Tex. Penal Code Ann. § 37.10 (Vernon Supp.2009)). In determining whether the plaintiff had made a report to an appropriate law enforcement authority under the Whistleblower Act, the court noted that the plaintiff had only presented evidence that the plaintiffs supervisor “had the authority to take remedial action with regard to the alleged inaccuracies in the response time reports.” Id. at 481-82. The court concluded that because the Whistleblower Act did not refer to the authority to take “remedial action,” but instead the authority to regulate under or enforce the law alleged to have been violated or to investigate or prosecute a violation of the criminal law, the plaintiffs evidence that he believed that his supervisor had the authority to take “remedial action” did not satisfy the objective or subjective components of good faith in section 554.002(b). Id. at 482.

In contrast, here, Okoli presented evidence that he had reported unlawful conduct to the three supervisors in his chain of command because he believed, in accord with TDHS policy, that he was required to report the unlawful conduct to his supervisor and then up his chain of command. Okoli believed the conduct of Carroll and other TDHS employees was criminal, and he believed that TDHS was authorized to, among other things, investigate the matters. Even TDHS appears to agree that its OIG had the authority to receive and investigate such complaints of criminal conduct associated with programs administered by TDHS. Thus, Duvall is not applicable.

We overrule TDHS’s first two issues.

Fraud and Malice “Claims”

In its third issue, TDHS argues that the trial court erred in denying its plea to the jurisdiction on Okoli’s fraud and malice claims because the claims “are barred by sovereign immunity.”

As we stated in our prior opinion, section 41.003 of the Texas Civil Practice and Remedies Code, which Okoli cites as the basis for his fraud and malice claims, “does not establish a cause of action.” Okoli, 263 S.W.3d at 282. “Rather, that section allows for the recovery of exemplary damages upon clear and convincing evidence of fraud, malice, or gross negligence.” Id (citing Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a) (Vernon Supp. 2009)). By his concession in his briefing, Okoli has “judicially admitted” that his allegations of malice and fraud are merely allegations on which he might base a request for exemplary damages. Id. (citing Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex.App.-Houston [14th Dist.] 2000, no pet.)). Because Okoli’s allegations of fraud and malice are merely allegations supporting damages, they cannot “implicate subject-matter jurisdiction, and a jurisdictional plea [cannot] be used to attack them.” Id.

We overrule TDHS’s third issue.

Conclusion

We affirm the order of the trial court.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008).

      . See Tex. Gov’t Code Ann. §§ 554.001-.010 (Vernon 2004).

      .We also held that because Okoli's malice and fraud allegations "were not causes of action, but were instead merely allegations supporting damages,” they did not implicate subject-matter jurisdiction and were not a proper subject of a plea to the jurisdiction. Tex. Dep't of Human Servs. v. Okoli, 263 S.W.3d 275, 282 (Tex.App.-Houston [1st Dist.] 2007), rev'd, 295 S.W.3d 667 (Tex.2009). Thus, we overruled TDHS’s third issue.

        .See Tex. Dep’t of Human Servs. v. Okoli, 263 S.W.3d at 276-77.

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.025, 101.057 (Vernon 2005).

      . Tex Hum. Res.Code Ann. § 12.002 (Vernon Supp.2009).

      . See id. § 22.0254 (Vernon 2001).

      . Immunity from liability is an affirmative defense that cannot be raised by a plea to the jurisdiction. Lueck, 290 S.W.3d at 880.

      . TDHS did not challenge in its plea, and does not challenge on appeal, that Okoli reported a violation of law.

      . We note that the Whistleblower Act is designed to enhance openness in government and to compel the government’s compliance with law by protecting those who inform authorities of wrongdoing. City of Houston v. Levingston, 221 S.W.3d 204, 218 (Tex.App.Houston [1st Dist.] 2006, no pet.) (citing Davis v. Ector County, 40 F.3d 777, 785 (5th Cir.1994)). The Whistleblower Act evidences two legislative purposes: (1) to protect public employees from retaliation by their employer when, in good faith, they report a violation of the law and (2) in consequence, to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies. Id.; see also Turner v. Perry, 278 S.W.3d 806, 821 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). Because the Act is remedial in nature, we construe its provisions liberally. Levingston, 221 S.W.3d at 218; Tex. Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 849 (Tex.App.-Austin 2007, pet. denied).

      .In Lueck, the Texas Supreme Court stated that "that the elements of section 554.002(a) can be considered to determine both jurisdiction and liability.” Lueck, 290 S.W.3d at 883. Because section 554.002(b) defines terms used in section 554.002(a), we necessarily consider subpart (b) of section 554.002 in the jurisdictional analysis.

      . We note that, as described on the website for the Texas Health and Human Services Commission, the OIG "works to prevent and reduce waste, abuse and fraud within the Texas health and human services system” and the OIG "works closely with all health and human services agencies and programs, and coordinates with local, state and federal law enforcement agencies to uphold the highest standards of integrity and accountability.” Health and Human Services Commission's Office of Inspector General, https://oig.hhsc. state.tx.us/ (last visited June 14, 2010). The website provides that "[a]ny state employee or public citizen may report waste, abuse or fraud” by using an online reporting form or calling the OIG’s toll free telephone number. Id.

      The website also sets forth the OIG's mission statement as follows:
      We protect the integrity and ensure accountability in the health and human services programs, as well as the health and welfare of the recipients of those programs, by identifying, communicating and correcting activities of waste, fraud or abuse in Texas.
      In performing its mission, the office is required to set clear objectives, priorities, and performance standards, including: Coordinating investigative efforts to aggressively recover Medicaid overpay-ments; Allocating resources to cases that have the strongest supportive evidence and the greatest potential for recovery of money; [and] Maximizing the opportunities for referral of cases to the Office of the Attorney General.

        Id.

      . This internal memorandum specifically refers to section 37.10 of the Texas Penal Code, which criminalizes tampering with a government record. See Tex. Penal Code Ann. § 37.10 (Vernon Supp.2009)

      . Okoli also testified that Carroll was directly involved in the unlawful conduct and that he believed Robinson was involved in some sort of "cover up” activity.

      . We also note that TDHS, in its mission statement, states that it coordinates with law enforcement authorities in regard to reports of fraud, waste, or abuse, and it encourages TDHS employees and citizens to make reports of waste, abuse or fraud directly to the OIG at TDHS. Health and Human Services Commission's Office of Inspector General, https://oig. hhsc.state.tx.us/ (last visited June 14, 2010).

      . As noted above, TDHS did not challenge that Okoli, in good faith, reported “a violation of law.” Thus, we do not comment on whether Okoli’s allegations actually support his claim that TDHS employees committed criminal conduct under the cited statute. Rather, TDHS's plea and appellate arguments focus on whether Okoli's supervisors to whom he made the report can be considered appropriate law enforcement authorities.

      .Okoli also cites numerous other provisions of the Texas Human Resources Code that he contends make clear that TDHS is authorized to regulate under or enforce the law alleged to be violated in the report or to investigate or prosecute a violation of criminal law. See Tex. Hum. Res.Code Ann. § 22.0254 ("Prosecution of Fraudulent Claims"); § 22.027("Fraud Prevention”); § 22.029 ("Project for Fraud Detection and Prevention Through Data Matching”)(Vernon 2001).

      . Of course, we must consider whether the governmental entity itself, which employs the individuals to whom the reports were made, could be considered an appropriate law enforcement authority authorized to regulate under or enforce the law alleged to be violated or investigate or prosecute a violation of criminal law. See Tex. Gov’t Code Ann. § 554.002 (Vernon 2004).

      . Construing any doubts in his favor, we must read Okoli’s testimony to mean that he had been instructed by TDHS to report such matters up his chain of command rather than to the OIG at TDHS directly. See City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex.2009) (stating that we must indulge every reasonable inference and resolve any doubts in favor of party resisting plea to jurisdiction).

      . The case in Levingston was tried to a jury, and both parties presented significant evidence at trial regarding whether BARC, and the manager to whom the whistleblowing reports were made, could be considered appropriate law enforcement authorities. Levingston, 221 S.W.3d at 218-219. Although we determined that BARC could be considered an appropriate law enforcement authority, we also determined that the manager to whom the reports had been made at BARC had the power to investigate the reported violations of Texas Penal Code and was “in the best position to receive such reports on behalf” of BARC. Id. (emphasis added).