McMillen v. Tex. Health & Human Servs. Comm’n No. 15-0147

Case summary written by Austin De Boer, Staff Member


Michael McMillen (McMillen) brought suit against the Texas Health and Human Services Commission (Commission) and its Executive Commissioner, Kyle L. Janek, when the Commission terminated him from his position as deputy counsel for the Office of the Inspector General within the Commission. McMillen alleged a violation of the Whistleblower Act, claiming that the Commission terminated himbased on his report of the Commission’s actions about the practice of obtaining payments from individual recipients of Medicaid benefits that lacked legal justification.

The 261st Judicial District Court, Travis County, denied Commission’s plea to the jurisdiction; Commission appealed. The Third Court of Appeals reversed. McMillen filed a petition for review that gave rise to the case at issue.

Issue: Whether a state employee made an alleged report of a legal violation to an appropriate law-enforcement authority as necessary to remove state-entity immunity under the Texas Whistleblower Act.

Under the Whistleblower Act—Tex. Gov’t Code Ann. § 554.002(b)—a reported-to authority is appropriate if it is a part of a state or local government entity or 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.

Here, the Office of the Inspector General of the Commission was responsible “for the investigation of fraud and abuse in the provision of health and human services and the enforcement of state law relating to the delivery of those services.” Therefore, the Commission has power beyond internal discipline to enforce the law allegedly violated under Tex. Gov’t Code Ann. § 531.102(a).

Therefore, McMillen reported to an appropriate law-enforcement authority. Without hearing oral arguments, the Court granted the petition for review, reverses the court of appeal’s judgment, and remands the case to the court of appeals for further proceedings.