In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-26-00073-CV
FORT WORTH INDEPENDENT SCHOOL DISTRICT, Appellant
V.
JOSEPH PALAZZOLO, Appellee
On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CV12-07-438
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant Fort Worth Independent School District (FWISD) appeals the trial
court’s denial of its jurisdictional plea to Appellee Joseph Palazzolo’s Texas
Whistleblower Act claim. See Tex. Gov’t Code § 554.002. FWISD argues that the trial
court erred by denying its plea. First, it argues that Palazzolo did not allege sufficient
facts or present sufficient jurisdictional facts on each of his whistleblower-claim
elements. Second, it argues that it is entitled to governmental immunity under Section
21.304(f) of the Texas Education Code. We will affirm.
I. Background
For the sixth time in 14 years, we are asked to reengage with the protracted
dispute between FWISD and its former employee Palazzolo—a task that conjures an
image of someone’s attempting to nail Jell-O to a wall. See Ft. Worth Indep. Sch. Dist. v.
Palazzolo (Palazzolo V), No. 02-18-00205-CV, 2019 WL 2454866, at *1 n.1 (Tex.
App.—Fort Worth June 13, 2019, pet. denied). 1 But we again analyze the issues
before us while at times re-explaining what we have already decided and re-stating
previously identified, unresolved factual disputes that a jury must decide.
1
Ft. Worth Indep. Sch. Dist. v. Palazzolo (Palazzolo IV), 498 S.W.3d 674 (Tex. App.—Fort Worth 2016, pet. denied); Palazzolo v. Ft. Worth Indep. Sch. Dist. Bd. of Trustees (Palazzolo III), No. 02-15-00302-CV, 2016 WL 741862 (Tex. App.—Fort Worth Feb. 25, 2016, no pet.); Ft. Worth Indep. Sch. Dist. v. Palazzolo (Palazzolo II), No. 02-13-00006-CV, 2014 WL 69889 (Tex. App.—Fort Worth Jan. 9, 2014, no pet.); & Ft. Worth Indep. Sch. Dist. v. Palazzolo (Palazzolo I), No. 02-12-00053-CV, 2012 WL 858632 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.).
2
Although we need not repeat the dispute’s underlying details, having previously
done so more than once, see Palazzolo V, 2019 WL 2454866, at *1–6; Palazzolo IV,
498 S.W.3d at 677–79; Palazzolo II, 2014 WL 69889, at *1–2, we offer some factual
and procedural context. FWISD placed Palazzolo on paid administrative leave on
August 26, 2010, and investigated him. Each side disputed why. On the one hand,
Palazzolo claimed retaliation for his reports of FWISD’s law violations. On the other,
FWISD pointed to Palazzolo’s own alleged misdeeds.
Then, on October 26, 2010, FWISD’s Board of Trustees voted to notify
Palazzolo of his proposed termination, and he invoked his rights under Chapter 21 of
the Texas Education Code. Palazzolo V, 2019 WL 2454866, at *3. A hearing examiner
ruled in FWISD’s favor, and Palazzolo appealed to the Texas Commissioner of
Education. Id. As a result of that process, the Commissioner reversed the hearing
examiner’s decision. Id.
But in lieu of reinstating Palazzolo and having a second Chapter
21 administrative hearing concerning his proposed contract termination, FWISD’s
Board voted on February 14, 2012, to pay him under Section 21.304(f). Id. (citing Tex.
Educ. Code § 21.304(f)). FWISD initially mailed two checks to Palazzolo’s attorney
with no explanation concerning his employment status. Out of caution, Palazzolo
filed an internal FWISD grievance on February 23. Id. On February 28, FWISD
3
clarified through another letter that he was no longer an FWISD employee.2 Id. at *17.
FWISD disposed of his grievance on June 8. Id. at *18.
On July 6, Palazzolo sued FWISD. Id. at *5. In 2014, the parties tried the case,
and a jury found in Palazzolo’s favor. Id.; see also Palazzolo IV, 498 S.W.3d at 678–79.
On appeal, we determined that the trial court had committed charge error by
refusing FWISD’s requested submission of its Section 554.004(b) affirmative
defense—that it would have taken the same complained-of action against Palazzolo in
terminating him based solely on information unrelated to his reporting FWISD’s
alleged law violations. Palazzolo IV, 498 S.W.3d at 682–86; see also Tex. Gov’t Code
§ 554.004(b). Notably, we rejected FWISD’s argument that “the uncontroverted
evidence conclusively establishe[d] that the termination of Palazzolo’s employment in
2012 would have occurred regardless of Palazzolo’s report of wrongful conduct.”
Palazzolo IV, 498 S.W.3d at 685.
Among the evidence we considered was the testimony of Larry Shaw, a former
director of the United Teachers Association, who testified to the following:
Q. So you said as one out of thousands this case stands out to you as
blatant retaliation?
A. This one does. A lot of times you look at it and you go, well, I
don’t think administration is retaliating; they just want to see change.
2
The February 28 letter indicated that FWISD was sending two checks—one for his salary through February 17, 2012, and another for his “final check” for a full year’s salary—and was ending his benefits on February 29, 2012.
4
This one, to me, was blatant retaliation. They went looking everywhere
they could find.
Id. Considering this and other evidence, we refused to render a take-nothing judgment
in FWISD’s favor and instead remanded the cause for a new trial, so that a jury could
consider Palazzolo’s evidence of alleged retaliation and FWISD’s affirmative-defense
evidence and resolve the disputed factual issues. Id. at 685–86.
Despite its appellate win—apparently dissatisfied with the new trial that it had
requested and obtained—FWISD used its rehearing-motion timeframe to first file in
this court a motion to dismiss for lack of jurisdiction based on “Palazzolo’s failure to
file his lawsuit within the . . . jurisdictional deadlines and because there ha[d] been no
waiver of FWISD’s immunity for Palazzolo’s lawsuit against FWISD.” We denied that
motion, and FWISD then petitioned for supreme court review, ignoring this court’s
charge-error-based decision in Palazzolo IV and challenging instead our denial of the
jurisdictional dismissal motion. The supreme court ordered merits briefing but denied
review.
When the case returned to the trial court, FWISD raised the issue there, filing a
limitations-based jurisdictional plea. Palazzolo V, 2019 WL 2454866, at *6. The trial
court denied the plea, and FWISD appealed. Id. at *1. In Palazzolo V, we determined
that Palazzolo had timely filed his whistleblower suit and that the trial court had
jurisdiction, and we again remanded the cause for further proceedings. Id. at *17–18.
5
FWISD petitioned for review, and the supreme court denied review in February
2020. 3
The record before us does not indicate what happened on remand. But the
bottom line is that the parties neither pushed the case to trial nor found a way to
mutually resolve it. Eventually, around five and a half years after remand, FWISD
filed a plea to the jurisdiction raising two (new) main points.
First, it argued that Palazzolo had “failed to allege and ha[d] no evidence to
support each of the elements of his whistleblower claim”—that (1) he was a public
employee on February 14, 2012, (2) he made a good-faith report of FWISD’s alleged
violation of law, (3) he made the report to an appropriate law-enforcement authority
in good faith, and (4) he suffered an adverse action that would not have occurred
when it did but for his report. [Capitalization modified.] Second, FWISD argued that
it was “entitled to governmental immunity from Palazzolo’s claim arising from [its]
February 14, 2012 [decision] because the Texas Legislature did not establish a clear
On remand, FWISD repeatedly argued that we had addressed only the
3
pleadings in resolving its plea in Palazzolo V. That is not so. FWISD based its plea on what it claimed were “two undisputed facts” and then attached and relied on over 200 pages of evidence. Palazzolo likewise filed numerous responsive exhibits. Our opinion made clear that we had analyzed the parties’ evidence in affirming the trial court’s denying the limitations-based jurisdictional plea. Palazzolo V, 2019 WL 2454866, at *6, 17–18. Presumably, FWISD put its best evidence in the record with its limitations plea, so it would be surprising were FWISD to argue that it has some other evidence that it now contends would somehow yield a different result on its limitations argument than what we concluded on the record before us in Palazzolo V.
6
and unambiguous waiver of governmental immunity for a school district that decides
to exercise its available statutory option under [Section] 21.304(f) of the Texas
Education Code.”
Palazzolo filed a response with 20-plus exhibits, including part of Shaw’s
testimony quoted above and other trial transcripts from 2014. He argued that his
pleadings were sufficient and asked for an opportunity to amend if they were
deficient. He also argued that he had presented sufficient evidence to support each
challenged whistleblower element. Finally, he urged the trial court to reject FWISD’s
immunity argument.
In January 2026—during a final pretrial hearing before a February 10 trial
date—the trial court considered FWISD’s jurisdictional plea. FWISD offered live
testimony from a witness and formally introduced its attached plea exhibits, which the
trial court admitted. Palazzolo called no witnesses and did not formally offer any of
his response’s attached exhibits. The trial court denied the plea and signed an order
stating that it had “considered the [p]lea and any responses and replies thereto.”
FWISD brought this interlocutory appeal.
II. Discussion
FWISD complains that the trial court erred by rejecting its jurisdictional
challenges to both Palazzolo’s pleadings and his evidence. FWISD also contends that
the trial court erred by rejecting its argument that it is immune from Palazzolo’s
whistleblower claim because it invoked Section 21.304(f) to end the Chapter
7
21 administrative proceedings concerning Palazzolo’s proposed contract termination.
We conclude that the trial court properly denied FWISD’s plea.
A. Standard of Review and Applicable Law
A court may not decide a case unless it has subject-matter jurisdiction. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (op. on reh’g).
We review challenges to a trial court’s subject-matter jurisdiction de novo. Id. at 228.
1. The Texas Whistleblower Act
“Governmental units, including school districts, are immune from suit unless
the state consents.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018). The Texas Whistleblower Act (the Act) waives a school district’s governmental
immunity when a public employee alleges a violation of the statute. Tex. Gov’t Code
§ 554.0035; State v. Lueck, 290 S.W.3d 876, 882 (Tex. 2009); Palazzolo V,
2019 WL2454866, at *7. Such a plaintiff must show that (1) as a public employee,
(2) he made a good-faith report that his employer or another public employee violated
the law, (3) to an appropriate law-enforcement authority, (4) and he was terminated,
suspended, or suffered an adverse personnel action because of the report. Tex. Gov’t
Code § 554.002; City of Fort Worth v. Pridgen, 653 S.W.3d 176, 182 (Tex. 2022).
A public employee “has the burden to affirmatively demonstrate the trial
court’s jurisdiction,” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019),
and a school district may challenge the trial court’s jurisdiction by attacking the
plaintiff’s pleadings, the existence of jurisdictional facts, or both, Alamo Heights,
8
544 S.W.3d at 770. Because a “jurisdictional plea can take multiple approaches,”
Gordon v. N. Tex. Tollway Auth., No. 02-24-00538-CV, 2025 WL 2370936, at *3 (Tex.
App.—Fort Worth Aug. 14, 2025, no pet.), “[w]hether the plaintiff bears an
evidentiary burden depends on how the government responds to the purported
waiver,” City of Austin v. Powell, 704 S.W.3d 437, 447 (Tex. 2024).
2. Challenges to Pleadings
When the government challenges the pleadings, it “does not dispute the
plaintiff’s factual allegations, and evidence is irrelevant.” Id. (quoting Miranda,
133 S.W.3d at 226). Rather, “the question is whether the alleged facts affirmatively
demonstrate a trial court’s subject[-]matter jurisdiction.” Id. (citation modified). “If the
plaintiff’s allegations neither establish jurisdiction nor negate it, the plaintiff is given
an opportunity to amend its pleadings, but if the allegations negate jurisdiction, the
plaintiff as a matter of law cannot establish jurisdiction, so the court must grant the
plea.” Id. Such a plea is similar, but not identical, to a motion to dismiss under
Rule 91a of the Texas Rules of Civil Procedure. Id.
3. Challenges to Jurisdictional Facts
The government “may instead ‘challenge[ ] the existence of jurisdictional facts,’
requiring the trial court to ‘consider relevant evidence submitted by the parties when
necessary to resolve the jurisdictional issues raised.’” Id. (quoting Miranda, 133 S.W.3d
at 227). This type of jurisdictional plea may resemble a no-evidence, a traditional, or a
hybrid summary-judgment motion where both parties attach evidence. Id. at 447–48.
9
“The ‘ultimate issue’ in that instance is . . . ‘whether the nonmovant raised a fact issue
to preclude summary judgment.’” Id. at 448 (quoting Fossil Grp., Inc. v. Harris,
691 S.W.3d 874, 882 (Tex. 2024)).
“[W]e must take as true all evidence favorable to the plaintiff, indulging every
reasonable inference and resolving any doubts in the plaintiff’s favor.” Tex. Health &
Hum. Servs. Comm’n v. Pope, 674 S.W.3d 273, 281 (Tex. 2023) (quoting Alamo Heights,
544 S.W.3d at 771. “In doing so, we cannot disregard evidence necessary to show
context, and we cannot disregard evidence and inferences unfavorable to the plaintiff
if reasonable jurors could not.” Id. (citation modified).
Here, FWISD raised both types of challenges, so we first consider Palazzolo’s
pleadings and then his jurisdictional-facts evidence.
B. Palazzolo’s Pleadings
Palazzolo’s live pleading is his First Amended Original Petition. It is the same
pleading on which the parties tried this case in 2014 without any jurisdictional
complaint from FWISD about its specificity. But 4,529 days after Palazzolo filed his
amended complaint—and after one trial on the merits and two appeals—FWISD filed
its latest jurisdictional plea claiming that Palazzolo’s amended petition was vague and
conclusory and had not alleged any of the elements of a whistleblower claim. The trial
court properly rejected FWISD’s pleadings-based jurisdictional plea.
Palazzolo pleaded that he was employed as an assistant principal at Arlington
Heights High School and “reported violations of law regarding [FWISD] and its
10
employees to appropriate law enforcement authorities and [FWISD] ended [his]
employment in retaliation.” He alleged that he reported FWISD’s falsification of
student attendance records, inappropriate sexual relationships among school officials,
school officials’ discrimination toward minority students, and school officials’ misuse
of booster-club funds. He alleged that his “reports demonstrated violations of law
including the Texas Education Code, federal and state education regulations, the
Texas Penal Code, and federal and state laws prohibiting [racial and color]
discrimination against students.” He further alleged that he “made such reports to
appropriate law[-]enforcement authorities including the Texas Education Agency,
Tarrant County [Criminal] District Attorney’s Office, the United States Department
of Education[,] and appropriate FWISD officials.”
Palazzolo pleaded about how FWISD officials reacted to his reports and
related negative media, claiming that he had embarrassed FWISD’s then
superintendent and angered its trustees. In fact, he alleged that one trustee had written
a “hostile” email to the superintendent about him. According to Palazzolo’s petition,
the Texas Education Agency (TEA) had confirmed through its investigation that
FWISD’s attendance records were inaccurate and had required FWISD “to remit
$17,956 in state funding that had been based on the faulty attendance information
[FWISD had] submitted.”
He also alleged that a law firm FWISD hired to collect taxes had initiated
collection efforts against him before dropping them. Palazzolo further claimed that
11
FWISD conducted background checks on him about things that he had allegedly not
previously disclosed—including an expunged charge and a $10 “petty” offense “that
kept [him] from obtaining or retaining employment.”
Ultimately, Palazzolo pleaded that FWISD “expressed hostility to [his] reports
of violations of law[,] . . . failed to follow its own policies in terminating [him,] . . .
[and] terminated [him] for false reasons.”4 Even though Palazzolo did not plead the
exact date of the October 26, 2010 vote, he alleged that “[he] sought a hearing to
challenge his proposed termination when it was initially proposed by Superintendent
Johnson” and summarized the Chapter 21 proceedings. He then alleged that
“[i]nstead of going forward with another hearing that would have resulted in his
reinstatement, [FWISD] summarily ended [his] employment on February 14, 2012”—
despite also alleging that some FWISD officials disputed whether his employment was
ended on that day. He briefly described his grievance, a failed mediation, and
FWISD’s rejection of his grievance.
4
Palazzolo also alleged that FWISD issued him an “unwarranted performance evaluation” and “demoted [him] by transferring him to a lower paying position away from Arlington Heights High School” where his daughter attended before moving him to a position at another school with comparable pay after he complained. We rendered judgment in Palazzolo II concerning an earlier whistleblower lawsuit that he take nothing on his transfer and appraisal-report claims, so it is unclear why Palazzolo reurged those allegations in the underlying lawsuit, and we do not consider them as part of our jurisdictional review in this case. 2014 WL 69889, at *6–7 (concluding that the trial court lacked jurisdiction over these claims because Palazzolo failed to produce any evidence that he had complied with Section 554.006’s grievance-initiation requirements concerning such claims).
12
He alleged that he had “given [FWISD] ample opportunity to review his
whistleblower allegations and to do the right thing regarding [his] employment with
[FWISD].” He claimed that he sued FWISD after it had terminated his grievance
proceeding, and he summarized his lawsuit as follows: “[FWISD] terminated/ended
[Palazzolo’s] employment in retaliation for his good[-]faith reports of violations of law
to appropriate law[-]enforcement authorities, in violation of [S]ection 554.002 of the
Texas Government Code.”
Analyzing the live pleading under the standard similar to that applied to a Rule
91a motion, see Powell, 704 S.W.3d at 447, we conclude that Palazzolo pleaded each
element of a whistleblower claim, see Jorolan v. Eads, No. 02-23-00338-CV,
2025 WL 628340, at *4 (Tex. App.—Fort Worth Feb. 26, 2025, no pet.) (“We apply a
fair[-]notice standard under which the pleadings are sufficient if a cause of action can
reasonably be inferred from the facts alleged.”). Palazzolo alleged that he was a public
employee through his February 14, 2012 termination; claimed that he—in good
faith—reported various violations of law to appropriate law-enforcement authorities
(including the TEA, which he pleaded had substantiated his report of FWISD’s
attendance-records falsification); and enumerated various adverse personnel actions
that he claimed FWISD had taken against him because of his reports, including his
termination. See Tex. Gov’t Code § 554.002; Pridgen, 653 S.W.3d at 182.
Although Palazzolo could have pleaded even more facts—for example, quoting
the trial testimony, providing an exacting timeline, or dissecting and detailing the
13
evidence supporting his claim, some of which we will discuss below—more robust
allegations were not necessary because his pleadings gave fair notice of the facts
underlying his whistleblower claim’s elements. See Miranda, 133 S.W.3d at
226 (requiring courts to “construe the pleadings liberally in favor of the plaintiff[] and
look to the pleader[’s] intent”); Jorolan, 2025 WL 628340, at *4.
Accordingly, we conclude that the trial court soundly rejected FWISD’s
pleadings-based jurisdictional attack. 5 We overrule FWISD’s issue on that point.
D. Palazzolo’s Jurisdictional Facts
FWISD’s plea also attacked the jurisdictional facts, and it argued that Palazzolo
had no evidence to support each element of his whistleblower claim. 6 We disagree.
5
A plea to the jurisdiction is a “dilatory plea,” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012), but attacking pleadings over 12 years after a petition has been filed (and after going to trial on that very petition) and pressing that attack through appeal seems an extreme delay measure. Of course, Palazzolo shares in the responsibility for the case’s delay by not earlier insisting on retrying the case. On this point, the trial court has encouraged the parties “to discuss resolving this case and getting to move on in life”—and we agree with that sentiment—but if the parties cannot do so, they need to request a trial setting to let a jury do it. See Genie Indus., Inc. v. Matak, 462 S.W.3d 1, 3 (Tex. 2015) (“The right to trial by jury in civil cases is constitutionally protected because we have, as a polity, determined to lay the resolution of factual disputes at the feet of our peers.”).
6
At the plea hearing, Palazzolo complained that FWISD’s plea was a “disguised motion for summary judgment” and that he should not be subjected to FWISD’s no-evidence challenge. That is simply an incorrect view of the law. See City of Arlington v. Cerkezi Enters., L.L.C., No. 02-25-00406-CV, 2026 WL 71144, at *4 (Tex. App.— Fort Worth Jan. 8, 2026, no pet.) (“A plea to the jurisdiction may be like a no-evidence motion for summary judgment by asserting that the plaintiff has produced no evidence of an element required for the immunity waiver to apply.” (citing Powell, 704 S.W.3d at 447)). Had Palazzolo not provided any evidence in
14
1. Public Employee
On the public-employee element, FWISD argued that Palazzolo had no
evidence that he was a public employee on February 14, 2012. FWISD does not
dispute that it employed Palazzolo or that it was even paying him on February 14.
Rather, it contends that because it had placed Palazzolo on paid administrative leave,
after October 26, 2010, he was not being paid to perform services for FWISD,
including on February 14, 2012, and did not meet the statutory “public employee”
definition. FWISD offers no authority supporting its strained position, and we reject
it.
Section 554.002(a) states that a local governmental entity may not suspend,
terminate, or take other adverse personnel action against a public employee who in
good faith reports his employing governmental agency’s alleged violation of law. Tex.
Gov’t Code § 554.002(a). A “public employee” is “an employee or appointed officer
other than an independent contractor who is paid to perform services for a . . . local
response to FWISD’s plea, he would have faced a formidable barrier to showing that he had met his evidentiary burden. But Palazzolo’s response, which the trial court’s order stated that it had considered, attached evidence that was also before the trial court, and we therefore look to that evidence. See Miranda, 133 S.W.3d at 227 (stating that courts must consider the “evidence submitted by the parties”); City of Fort Worth v. Alvarez, No. 02-17-00091-CV, 2018 WL 2248481, at *10 (Tex. App.—Fort Worth May 17, 2018, no pet.) (considering evidence attached to plea response); see also Stavron v. SureTec Ins. Co., No. 02-19-00125-CV, 2019 WL 6768125, at *6 (Tex. App.—Fort Worth Dec. 12, 2019, no pet.) (collecting cases stating that when a trial court’s summary-judgment order states that it has considered a response, the order signifies that the trial court also considered any evidence attached to the response).
15
governmental entity.” Id. § 554.001(4) (emphasis added). Thus, the statute allows “[a]
public employee whose employment is suspended or terminated or who is subjected
to an adverse personnel action in violation of Section 554.002 . . . to sue.” Id.
§ 554.003.
Although the statute does not specify what time frame courts should consider,
the statute must be read to cover an employee who is paid to perform services for the
employer at the time of the employee’s reporting of the employer’s violations of law
and during the employer’s alleged resulting acts of retaliation that lead to suspension
or termination. Id. §§ 554.001(4), .002, .003. Here, the parties do not dispute that
FWISD employed Palazzolo first as a teacher in 2007 and after that as a high school
administrator. He offered evidence that he was employed as a high-school
administrator when on August 9, 2010, he reported FWISD’s alleged attendance
falsification to the Texas State Auditor’s Office and the TEA.7 Palazzolo also
provided evidence that he had contacted the Tarrant County Criminal District
Attorney’s Office and the United States Department of Education.
Even before these reports, FWISD knew that Palazzolo was accusing FWISD
of the alleged attendance violations and other violations of law. And the evidence
shows that on August 26, 2010, FWISD placed Palazzolo on paid administrative
leave. It claimed to be investigating Palazzolo for various acts of “inappropriate
The evidence shows that on September 9, the TEA responded to Palazzolo,
7
acknowledging receipt of his report.
16
behavior.” Two months later, on October 26, 2010, FWISD’s Board voted 6–3 to
accept the superintendent’s proposed recommendation to terminate Palazzolo, subject
to his Chapter 21 rights.
Exercising those rights, Palazzolo disputed that FWISD’s decisions were made
because of his alleged misconduct, and he claimed that FWISD had retaliated against
him for his reports of FWISD’s violations of law. 8 As the Chapter 21 process played
out, the record does not reflect that Palazzolo’s paid-administrative-leave status ever
changed between August 26, 2010, and February 28, 2012, when FWISD’s letter
confirmed his termination. 9
We reject FWISD’s argument that we look solely to February 14, 2012—after
FWISD had already placed him on administrative leave to prevent him from
performing services like teaching or administering—to conclude that he could not
produce evidence that he was a public employee under the Act. Rather, viewing the
record evidence in the light most favorable to Palazzolo, we conclude that Palazzolo
presented sufficient evidence to raise a genuine issue of material fact that he was a
8
In short, Palazzolo claims the evidence shows that FWISD retaliated against him for his whistleblower reports, and FWISD contends that it took its employment actions without regard to those reports. We identified this factual dispute in Palazzolo IV and ordered a new trial, and now ten years after that decision, the parties have not yet asked a factfinder to resolve the dispute. See 498 S.W.3d at 685.
9
At the plea hearing, a former FWISD trustee testified that FWISD had not paid Palazzolo to perform any work or services since October 26, 2010. One could argue, however, that FWISD was paying him to perform services but would not let him perform those services.
17
public employee: that is, he presented some evidence that FWISD paid him to
perform services as a school administrator when he made his reports to the TEA and
State Auditor’s Office on August 9, 2010, and when he claims FWISD retaliated
against him by placing him on administrative leave on August 26, 2010, which led to
his eventual termination in February 2012.
2. Palazzolo’s Good-Faith Reporting of FWISD’s Alleged Violations of
Law to Appropriate Law-Enforcement Authorities
FWISD also argued that Palazzolo had no evidence that (1) he made any
good-faith reports of FWISD’s alleged violations of law (2) to any appropriate
law-enforcement authorities. In looking at both related elements, we conclude that
Palazzolo easily met his evidentiary burden.
The Texas Supreme Court has confirmed that the Act “is aimed at ‘ferreting
out government mismanagement to protect the public,’” and thus “is intended to
protect those [reports] that further this purpose.” Pridgen, 653 S.W.3d at 184 (quoting
Neighborhood Ctrs., Inc. v. Walker, 544 S.W.3d 744, 748 (Tex. 2018)). A valid report must
convey factual information regarding alleged illegal conduct with the “aim to expose,
corroborate, or otherwise provide information pertinent to identifying or investigating
governmental illegality,” id. at 187–88, and it “need not identify the statute, ordinance,
or rule []he believes was violated,” City of Fort Worth v. Van Houten,
No. 05-24-01080-CV, 2025 WL 3465451, at *4 (Tex. App.—Dallas Dec. 2, 2025, no
pet.). Additionally, the court has stated that “the Act’s structure relies on the report
18
being made to an ‘appropriate law[-]enforcement authority’ with the power to enforce
the law alleged to be violated or to investigate or prosecute criminal violations.” Pope,
674 S.W.3d at 283 (quoting Tex. Gov’t Code § 554.002(b)).
As we have already detailed above, among other things, Palazzolo thought that
FWISD was falsifying attendance records and reported that concern to the State
Auditor’s Office, the TEA, and the Tarrant County Criminal District Attorney’s
Office, among others. 10 In response to FWISD’s plea, Palazzolo argued that he did
not need to plead the exact statute at issue, see City of Fort Worth, 2025 WL 3465451, at
*4, but he pointed out that Section 48.270 of the Texas Education Code empowers
the TEA to investigate a school district’s alleged deliberate falsification of attendance
records and similar violations of the education code and to report its findings “to the
State Board of Education, the state auditor, and the appropriate . . . criminal district
attorney.” Tex. Educ. Code § 48.270. Palazzolo pointed to his 2014 trial testimony
about his attendance-falsification reports and TEA’s confirmation letters showing that
it had substantiated his attendance-falsification report and made FWISD adjust what
it owed the State.
10
We specifically omit discussing any evidence concerning what Palazzolo internally told FWISD because that evidence does not satisfy the Act. See Pope, 674 S.W.3d at 283 (stating that the Act usually “does not protect purely internal reports”); Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013) (“[T]he Act protects those who report to authorities that issue legal directives, not authorities that follow them.”).
19
This evidence is more than enough to raise a genuine issue of material fact that
Palazzolo reported in good faith what he believed were FWISD’s violations of law to
appropriate law-enforcement authorities that Palazzolo correctly believed were
authorized “to regulate under or enforce the law alleged to be violated in [his]
report.” 11 See Tex. Gov’t Code § 554.002(b)(1). We thus conclude that Palazzolo met
his evidentiary burden in responding to FWISD’s jurisdictional plea attacking the
good-faith-reporting and appropriate-authority elements.
3. Palazzolo’s Suffering an Adverse Action Because of His Reporting
Echoing its rejected argument from ten years before, see Palazzolo IV,
498 S.W.3d at 685–86, FWISD argued that Palazzolo had no evidence to establish
that he suffered an adverse action that would not have occurred when it did but for
his report. This time, however, FWISD narrowed its focus to a single date and a single
event—its Board’s February 14, 2012 vote—and argued that it had no retaliatory
11
We need not exhaustively discuss Palazzolo’s evidence, but we briefly address his contention that he thought that FWISD’s attendance-falsification conduct constituted tampering with a governmental record, see Tex. Penal Code § 37.10, which is why his petition generally referenced the “Texas Penal Code” and why he attached his trial testimony concerning his contacting the “District Attorney.” Such evidence also raised a fact issue on the reporting and appropriate-authority elements. Even though Palazzolo testified that the prosecutor “dropped” the case, the Act does not require a prosecutor to take a case or obtain a conviction; it merely requires that the public employee report a violation of law to an appropriate law-enforcement authority “that the employee in good faith believes is authorized to . . . investigate or prosecute a violation of criminal law.” See Tex. Gov’t Code § 554.002(b). And Tarrant County’s Criminal District Attorney certainly has that authority. See Tex. Gov’t Code § 44.320(b)(2).
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intent when it exercised its option under Section 21.304(f) to pay Palazzolo instead of
reinstating him and having a second Chapter 21 hearing.
FWISD claimed that its Board had voted to focus on “educating students,” “to
end the administrative proceedings,” and to avoid having to “continue to expend
taxpayer funds for a second hearing process” when the first had cost over $300,000.
FWISD thus maintained that there was no evidence that its February 14, 2012 vote
had anything to do with Palazzolo’s reports of FWISD’s violations of law. Regardless
of what we might think about the parties’ competing evidence and narratives, in
reviewing the trial court’s denial of FWISD’s jurisdictional plea, we must review the
record evidence in the light most favorable to Palazzolo. See Pope, 674 S.W.3d at 281;
Alamo Heights, 544 S.W.3d at 771.
And Palazzolo produced evidence in support of his version of events. As we
noted above, Palazzolo attached and directed the trial court to Larry Shaw’s trial
testimony agreeing that Palazzolo’s case stood out as “blatant retaliation.” Palazzolo
also included Shaw’s testimony that “[t]hey wanted him gone, and they started, in my
opinion, looking for things to get him gone.” Additionally, Palazzolo attached
transcripts from other FWISD employees, in which they each testified that FWISD
had retaliated against Palazzolo.
He also presented trial testimony from a former trustee who, when asked
whether she believed that FWISD had executed “a systematic plan to dig up
information so that Mr. Palazzolo could be terminated,” agreed that “[t]hat is very
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obvious.” The trustee was asked, “[D]o you think the timing is suspicious with respect
to when [FWISD] started looking for whatever it could so that it could terminate Mr.
Palazzolo?” She responded, “I don’t think it’s suspicious. I think it’s obvious because,
as I said, his personnel file was clean when they started.” She then confirmed that she
believed that FWISD’s actions against Palazzolo were retaliatory. She explained that
although she had not voted for Palazzolo’s proposed termination, six other board
members had, and she testified that the “TEA made us reinstate him.”
Undisputedly, when FWISD opted to pay Palazzolo under Section 21.304(f)—
which relieved FWISD of having to reinstate him and having another costly Chapter
21 hearing—that decision ended his chance for reinstatement and resulted in
Palazzolo’s actual termination. We are not saying that the evidence conclusively
supports what Palazzolo claims concerning FWISD’s retaliatory intent. But neither
has FWISD conclusively proven its case. Rather, Palazzolo presented evidence
sufficient to raise a genuine issue of material fact that he suffered an adverse
employment action—leading to his termination—because of his reports of FWISD’s
alleged violations of law.
Accordingly, the trial court did not err by denying FWISD’s challenge to
Palazzolo’s jurisdictional facts and trying to get the case before a jury, which can then
resolve the parties’ disputed fact issues. See Palazzolo IV, 498 S.W.3d at 685–86. We
overrule the part of FWISD’s issue challenging Palazzolo’s jurisdictional facts.
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E. FWISD’s Immunity Defense
In its jurisdictional plea, FWISD also argued that it was entitled to
governmental immunity from Palazzolo’s whistleblower claim arising from FWISD’s
Board’s unanimous February 14, 2012 decision to exercise its statutory option under
Section 21.304(f) to pay its former employee in lieu of reinstating him for further
Chapter 21 proceedings on his proposed termination. FWISD maintained that the
legislature did not establish a clear and unambiguous waiver of governmental
immunity for a school district exercising the Section 21.304(f) option. On appeal,
FWISD contends that the trial court improperly rejected this argument. It did not.
It is settled in Texas that for the legislature to waive a school district’s
governmental immunity, a statute or resolution must contain a clear and unambiguous
expression of the waiver. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.
2003). “[A] statute shall not be construed as a waiver of sovereign immunity unless
the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code
§ 311.034. Here, there is no dispute that the Act waives a school district’s
governmental immunity when a public employee alleges a violation of the statute.
Tex. Gov’t Code § 554.0035; Lueck, 290 S.W.3d at 882; Palazzolo V,
2019 WL 2454866, at *7.
FWISD has cited no authority suggesting that a school district’s exercising its
option under Section 21.304(f), see Tex. Educ. Code § 21.304(f), results in the district’s
reimposing its statutorily waived immunity from a former employee’s whistleblower
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claim, see Tex. Gov’t Code §§ 554.002, .0035. Nor have we found any such authority.
Indeed, we have already stated that “we abhor the thought that a school board could
otherwise attempt to buy off a [w]histleblower claim—with its attendant allegations of
governmental wrongdoing and retaliation—for the price of a year’s salary under
Chapter 21.” Palazzolo V, 2019 WL 2454866, at *18 n.28.
And considering the text of the applicable statutes, we do not think that the
legislature intended for Section 21.304(f), when exercised, to functionally reimpose a
district’s immunity from a whistleblower claim. Chapter 21, Subchapters F and G, of
the Texas Education Code governs certain proposed contract terminations and
creates a structured hearing process before an independent hearing examiner with
appellate review before the Commissioner of Education. See Tex. Educ. Code
§§ 21.251–.307.
The Texas Whistleblower Act creates a statutory cause of action as we have set
forth above. Tex. Gov’t Code Ann. § 554.003. It “has its own statutory remedies and
procedures that do not require exhaustion with the Commissioner under the
Education Code.” Palazzolo V, 2019 WL 2454866, at *9 (quoting Canutillo ISD v.
Farran, 409 S.W.3d 653, 657 (Tex. 2013)). Nothing in the text of either Chapter 21 of
the Texas Education Code or Chapter 554 of the Texas Government Code states that
a school district’s exercising its Section 21.304(f) rights concerning an employee’s
term contract operates to extinguish the affected employee’s potential whistleblower
claim for the employer’s alleged adverse action. See Allison Publications, LLC v. Doe,
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654 S.W.3d 210, 217 (Tex. App.—Fort Worth 2022, pet. denied) (“The legislature
does not alter major areas of law in vague terms or no terms at all—it does not, one
might say, hide elephants in mouseholes.” (citation modified)).
We thus conclude that the trial court did not err by denying FWISD’s
jurisdictional plea claiming that it was immune from Palazzolo’s whistleblower claim
after exercising its Section 21.304(f) option concerning his contract termination. We
overrule the part of FWISD’s issue raising this immunity defense.
III. Conclusion
Having overruled the multiple parts of FWISD’s sole issue, we affirm the trial
court’s order denying the jurisdictional plea.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: August 13, 2026
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