IN THE SUPREME COURT OF
The Ed Rachal Foundation and Paul Altheide,
Claude D’Unger, Respondent
On Petition for Review from the
Court of Appeals for the Thirteenth District
recent years this Court has rejected invitations to create a common-law cause of
action for all whistleblowers, noting each time that a general claim would
eclipse the Legislature’s decision to enact a number of narrowly-tailored whistleblower statutes instead. See
Claude D’Unger was an officer and director of the Ed Rachal Foundation, a charitable organization that owns a
D’Unger became concerned that the ranch’s foreman, Ed DuBose, was harassing migrants, and reported his concerns to Paul Altheide, the Foundation’s chief executive officer. According to D’Unger, Altheide told him “to drop it,” which he took as an instruction not to report DuBose’s activities to any law enforcement officials.
On September 17, 1997, DuBose apprehended three teenage Mexican nationals at the ranch, handcuffed them, and turned them over to Border Patrol agents. When D’Unger saw a ranch report of the incident, he contacted Border Patrol agents, who told him they had no knowledge or record of the incident. Concerned that a crime might have been committed, D’Unger subsequently contacted a congressman, two sheriffs, the Texas Attorney General’s office, a senator, the IRS, a district judge, and the Mexican Consulate about the matter. When Altheide learned of D’Unger’s activities, he first suspended him, and then fired him when he refused to resign.
D’Unger sued the Foundation for breach of contract and
wrongful termination, and Altheide for tortious interference. Shortly after he filed suit, the
Border Patrol produced records under the Freedom of Information Act showing his
concerns were unfounded C that DuBose had safely delivered the teenagers to Border Patrol
custody the day he apprehended them. Nevertheless, a
A unanimous court of appeals reversed the breach of contract and tortious interference claims. 117 S.W.3d at 357. In a cross-point, see Tex. R. App. P. 53.3(c)(2), D’Unger challenges only the reversal of his contract claim, arguing that by agreeing to pay him a salary of $80,000 per year the Foundation bound itself to a contract of renewable one-year terms.
Judicial District Community Supervision v. Jones, we rejected the so‑called
“English rule” that hiring an employee at a stated sum per week, month, or year
always constitutes a promise of definite employment for that term. See 92
S.W.3d 486, 487 (
D’Unger’s evidence established nothing more here. D’Unger’s personal understanding of his contract, or annual renewals of it in the past, do not unequivocally indicate that the Foundation intended to be bound throughout that term. We agree with the court of appeals that there was no evidence to support D’Unger’s breach of contract claim.
The court of appeals divided on D’Unger’s sole remaining claim, with the majority affirming a judgment for wrongful termination. 117 S.W.3d at 361. We agree with the dissenting justice, and thus reverse.
D’Unger’s wrongful termination claim is based on the narrow
exception to at-will employment that we created in Sabine Pilot Service, Inc.
v. Hauck, 687 S.W.2d 733 (Tex. 1985). This exception makes it unlawful to
terminate employees if the sole reason is their refusal to perform an illegal
Sabine Pilot protects employees who are asked to commit a crime,
not those who are asked not to report one. If failing to report a crime
were itself a crime, then almost all whistleblowers could claim the Sabine
Pilot exception. The plaintiffs in both
Generally, failing to report a crime, like any other failure to act, is not a crime unless a specific law “provides that the omission is an offense or otherwise provides that he has a duty to perform the act.” Tex. Pen. Code ' 6.01(c). While a few specific laws impose such duties, see, e.g., Tex. Fam. Code ' 261.109 (criminalizing failure to report suspected child abuse), D’Unger points to no specific law that would criminalize his silence here. Like the various whistleblower statutes, specific criminal statutes requiring certain crimes to be reported would be unnecessary if every failure to report a crime were itself a crime.
The court of appeals erred in finding there was some evidence that D’Unger was asked to join a criminal conspiracy. Criminal responsibility as a conspirator requires proof of culpable acts made with an intent to assist in the commission of a crime before it occurs. See Tex. Penal Code '' 7.02(a), 15.02. There is no evidence D’Unger was asked to participate in any impending criminal acts, or that he ever intended to do so.
The court of
appeals also believed D’Unger stood in jeopardy of the
crime of misprision of felony. That crime is committed by anyone who has
“knowledge of the actual commission of a felony” and yet “conceals and does not
as soon as possible make known the same to some judge or other person in civil
or military authority under the
The jury was also instructed that D’Unger was wrongfully terminated if the sole reason for termination was his resistance to harassment intended to keep him from reporting a crime. But the only possible crimes related to this instruction are those criminalizing harassment or conspiracies to intimidate potential witnesses. See 18 U.S.C. ' 1512; Tex. Penal Code ' 36.05. Again, there was no evidence D’Unger was himself a witness or was asked to tamper with any witnesses.
D’Unger urges us to adopt what he calls a “corollary”
to Sabine Pilot adopted by the Thirteenth Court of Appeals to protect
employees who contact law-enforcement agencies to find out whether something
they have been asked to do is illegal. See
We do not mean to suggest that D’Unger has done anything wrong; to the contrary, the very reason he does not fall within the Sabine Pilot exception is that he neither did nor was asked to do anything criminal. That exception would allow a whistleblower to state a claim if failing to blow the whistle would itself be a criminal act. But there is no evidence that was the case here.
employers and employees have civic and social obligations to report suspected
crimes; “gross indifference to the duty to report known criminal behavior
remains a badge of irresponsible citizenship.” Roberts v.
Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment in part and render judgment that D’Unger take nothing. Tex. R. App. P. 59.1.
Opinion delivered: April 21, 2006
 The Texas Legislature criminalized failure to report a felony in 2003 (several years after D’Unger was fired), but also required that the accused actually observe the commission of a felony. See Tex. Pen. Code ' 38.171.
 Because of our holding on this issue, we need not reach the remaining issues raised by the Foundation.