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The Supreme Court recently ruled against a tenured professor who had sued the University of Houston under the Whistleblower's Act, alleging that it had retaliated against him after he reported "contracting and accounting irregularities." At trial, the jury listened to the evidence and ruled in favor of the professor. When the university appealed, the court of appeals ruled that it had waived its "legal sufficiency" challenge to the reporting requirement of the Act. But in The University of Houston v. Barth, ___ S.W.3d ___ (Tex. 2010)(6/11/10), decided last month, the Supreme Court reversed and remanded the case to the court of appeals, saying that the reporting requirement is "jurisdictional."

"[W]e held [last year in an opinion named Lueck] that 'the elements of [Texas Government Code] section 554.002(a) can be considered to determine both jurisdiction and liability.' Accordingly, whether Barth's reports to University officials are good-faith reports of a violation of law to an appropriate law-enforcement authority is a jurisdictional question. Jurisdiction may be raised for the first time on appeal and may not be waived by the parties. [Here, the] University challenges whether the trial court had jurisdiction." The result was that, even though the university did not "preserve" in the trial court the claimed error about whether Professor Barth had properly reported the violations, it will nevertheless be allowed a second opportunity in the court of appeals to argue that the evidence of reporting was insufficient.

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