Brandon Lewis v. Fire Chief Larry Di Camillo, Stafford Fire Marshal's Office, and the City of Stafford ( 2021 )

Opinion issued August 26, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00764-CV
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BRANDON LEWIS, Appellant
V.
FIRE CHIEF LARRY DI CAMILLO, STAFFORD FIRE MARSHAL’S
OFFICE, AND THE CITY OF STAFFORD, Appellees
On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case No. 19-DCV-260484
MEMORANDUM OPINION
Following the termination of his employment with the Stafford Fire
Department, appellant Brandon Lewis sued the City of Stafford, the Stafford Fire
Marshal’s Office, and Fire Chief Larry Di Camillo (“Chief Di Camillo”)
(collectively, “appellees”). Appellees filed a plea to the jurisdiction, asserting the
doctrine of governmental immunity. The trial court granted appellees’ plea to the
jurisdiction, and Lewis appealed.
We affirm.
Background
On September 4, 2018, Lewis was terminated from his position as an
Inspector/Investigator with the Stafford Fire Department. About two weeks before,
on August 22nd, Chief Di Camillo received information from Peter E. Alvarado,
the Emergency Management Coordinator for the Stafford Fire Marshal’s Office,
about Lewis’s prior employment with the Missouri City Fire Department. Alvarado
had been informed by the Missouri City Fire Marshal’s Office (“MCFMO”) that
Lewis was not allowed to conduct business or aid in investigations in Missouri
City because Lewis, previously an intern with the MCFMO, was fired from the
Missouri City Fire Department after being accused of stealing a book. Alvarado
reviewed Lewis’s employment files and found that Lewis did not list his previous
work for the Missouri City Fire Department on his applications, his personal
history statement, or his resume. Alvarado provided this information to Chief Di
Camillo in a signed, written memorandum (the “August 22nd Memorandum”).
On September 4th, Chief Di Camillo provided Lewis with a signed, written
“Complaint Notification – FD AI-18-001” (the “Complaint Notification”). In the
Complaint Notification, Chief Di Camillo informed Lewis that he was advised by
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Alvarado of Lewis’s termination from the Missouri City Fire Department in 2008
“for untruthfulness in reference to the theft of a book of another [i]ntern.” Chief Di
Camillo stated that it appeared Lewis “failed to divulge this information in
response to the requested background information regarding [his] previous
employment status” and that the documents Lewis provided did not “indicate that
[Lewis] had ever been employed by the Missouri City Fire Department at any
time.” Because it appeared that Lewis “falsified these documents and purposefully
misled the City of Stafford and TCOLE [Texas Commission on Law Enforcement]
by omitting required information,” Chief Di Camillo ordered an Administrative
Investigation into Lewis’s “alleged falsification of government documents and
untruthfulness regarding [his] time with the City of Missouri City.” Chief Di
Camillo accused Lewis of “failing to truthfully provide relevant information on
[his] employment application and [p]ersonal [h]istory [s]tatement[,] as required.”
Chief Di Camillo also provided Lewis a copy of the August 22nd Memorandum.
On the same day, Chief Di Camillo provided Lewis with an “Administrative
Investigation FD 18-001 (FD AI 18-00),” which stated that Chief Di Camillo had
reviewed the complaint “alleging omission of work history during the application
and background process for employment and falsification of a TCOLE document”
and agreed with Alvarado’s findings. As a result, Chief Di Camillo terminated
Lewis’s employment. Chief Di Camillo informed Lewis of his right to appeal the
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termination either in writing or in person to Chief Di Camillo within five business
days, or by September 11th. And Lewis signed a document indicating he had
received the “Notification of Complaint for Untruthfulness” and,
“[a]dditionally, . . . ha[d] been provided a copy of the complaint.”
Lewis appealed his termination to Chief Di Camillo on September 6th, three
business days before his deadline to do so. On September 11th, Chief Di Camillo
sustained the original decision to terminate Lewis’s employment and informed
Lewis of his right to appeal the termination to the City of Stafford City Council.
Lewis elected not to pursue an appeal to the City Council.
In March 2019, Lewis filed his original petition and supporting affidavit
against Chief Di Camillo in his official capacity,1 the Stafford Fire Marshal’s
Office, and the City of Stafford. Lewis sought a judgment declaring that appellees
failed to comply with the requirements of Chapter 614 of the Texas Government
Code because they did not provide him with a copy of the complaint against him
1
Lewis also sued Chief Di Camillo in his personal capacity. Lewis has not raised
any arguments in this Court, or in the trial court, as to whether Chief Di Camillo
could be subject to an ultra vires suit in his personal capacity. A brief must contain
“a clear and concise argument for the contentions made,” supported by
“appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).
The failure to provide argument and analysis in support of an issue can result in
waiver. RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018). We
conclude Lewis waived any personal-capacity claims against Chief Di Camillo.
See, e.g., Bailey v. Smith, 581 S.W.3d 374, 387 n.6 (Tex. App.—Austin 2019, pet.
denied) (holding plaintiff waived claims against defendants in individual
capacities because plaintiff failed to mention these claims in appellate brief).
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within a reasonable time.2 Lewis alleged their failure to do so constituted an ultra
vires exception to governmental immunity. Appellees answered and filed a plea to
the jurisdiction, arguing that Lewis had not pleaded facts giving rise to a violation
of Chapter 614 of the Texas Government Code and, therefore, had no basis for
overcoming appellees’ governmental immunity. Lewis amended his petition and
filed a response to appellees’ plea to the jurisdiction, attaching a supplemental
affidavit in support.
After a hearing, the trial court granted appellees’ plea to the jurisdiction.
This appeal followed.
Plea to the Jurisdiction
In five related issues, Lewis challenges the trial court’s grant of appellees’
plea to the jurisdiction.
A. Standard of Review
We review a trial court’s ruling on a plea to the jurisdiction de novo. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether
a court has subject matter jurisdiction is a question of law. Tex. Natural Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). Likewise,
whether undisputed evidence of jurisdictional facts establishes a trial court’s
jurisdiction is also a question of law. Miranda, 133 S.W.3d at 226. “However, in
2
Lewis also sought injunctive and mandamus relief.
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some cases, disputed evidence of jurisdictional facts that also implicate the merits
of the case may require resolution by the finder of fact.” Id.
When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to
hear the cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993). We construe the pleadings liberally in the plaintiff’s favor and look to
the pleader’s intent. Id. If the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiff should be afforded the opportunity to amend his
pleading. Miranda, 133 S.W.3d at 226–27. If the pleadings affirmatively negate
the existence of jurisdiction, then a plea to the jurisdiction may be granted without
allowing the plaintiff an opportunity to amend. Id.
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, as the trial court is required to do. Id. at 227. When
the consideration of a trial court’s subject matter jurisdiction requires the
examination of evidence, the trial court exercises its discretion in deciding whether
the jurisdictional determination should be made at a preliminary hearing or await a
fuller development of the case, mindful that this determination must be made as
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soon as practicable. Id. Then, in a case in which the jurisdictional challenge
implicates the merits of the plaintiff’s cause of action and the plea to the
jurisdiction includes evidence, the trial court reviews the relevant evidence to
determine if a fact issue exists. Id. Like a traditional summary judgment motion, if
the evidence creates a fact question regarding the jurisdictional issue, the trial court
cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the
fact finder. Id. at 227–28. If the relevant evidence is undisputed or fails to raise a
fact question on the jurisdictional issue, however, the trial court rules on the plea to
the jurisdiction as a matter of law. Id. at 228.
B. Governmental Immunity
Governmental immunity applies to political subdivisions of the State, while
the immunity of the State itself is referred to as sovereign immunity. City of Dallas
v. Albert, 354 S.W.3d 368, 372–73 (Tex. 2011). “When performing governmental
functions, political subdivisions derive governmental immunity from the state’s
sovereign immunity.” City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.
2011) (footnote omitted). Governmental immunity comprises both immunity from
liability and immunity from suit. Albert, 354 S.W.3d at 373. “Immunity from
liability protects entities from judgment while immunity from suit deprives courts
of jurisdiction over suits against entities unless the Legislature has expressly
consented[.]” Id. Thus, the Legislature can waive a political subdivision’s
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governmental immunity. See id. at 374 (“[W]aivers of sovereign immunity or
consent to sue governmental entities must generally be found in actions of the
Legislature.”).
A suit for declaratory or injunctive relief against a state official to compel
compliance with a statutory provision is not a suit against the State and is not
barred by governmental immunity. See City of El Paso v. Heinrich, 284 S.W.3d
366, 370 (Tex. 2009). Such a suit prevents an officer from acting ultra vires and
does “not seek to alter government policy but rather to enforce existing policy.” Id.
at 372. An ultra vires suit must allege and prove that an officer acted without legal
authority or failed to perform a purely ministerial, non-discretionary act. Id. at 372.
The proper party for an ultra vires suit is the state actor in his official capacity, as
the State retains immunity from suit, even if a judgment against the servant in his
official capacity will impose liability on the State as a whole. See id. at 373.
The Texas Declaratory Judgments Act contains a waiver of immunity from
suit. See TEX. CIV. PRAC. & REM. CODE § 37.006(b); Montrose Mgmt. Dist. v. 1620
Hawthorne, Ltd., 435 S.W.3d 393, 403 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied). If a party joins a governmental entity and seeks a declaration
construing a particular ordinance or statute, immunity from suit is waived. See Tex.
Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 633–35 (Tex.
2010). But governmental immunity will bar an otherwise proper
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declaratory-judgment claim that will have the ultimate effect of establishing a right
to relief against a governmental entity for which the Legislature has not waived
immunity. See Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388
(Tex. 2011).
C. Analysis
Lewis alleges that appellees failed to perform a necessary ministerial act and
acted outside their authority by failing to provide him with a signed complaint—
the August 22nd Memorandum—within a reasonable time after it was filed in
violation of Section 614.023 of the Texas Government Code. See TEX. GOV’T
CODE § 614.023(a). Lewis admits he received the August 22nd Memorandum on
September 4th, the day he was terminated, but contends the 13-day delay was
unreasonable and denied him a reasonable opportunity to collect evidence to
defend himself before he was terminated. He contends that the reasonableness of
this 13-day delay is a fact question that precluded the trial court from granting
appellees’ plea to the jurisdiction.
Appellees argue that the trial court properly granted the plea to the
jurisdiction because, even construing the facts alleged in Lewis’s amended petition
and affidavits in his favor, they fully complied with Chapter 614 and there is no
fact question as to reasonableness considering the Texas Supreme Court’s opinion
in Colorado County v. Staff, 510 S.W.3d 435 (Tex. 2017). Because the undisputed
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facts establish appellees complied with Chapter 614, they contend there is no basis
for a waiver of governmental immunity and the plea to the jurisdiction was
properly granted. We agree with appellees.
Government Code Chapter 614, Subchapter B addresses a category of
circumstances in which a “complaint” is made against a peace officer, and it
requires a specified procedure to be followed before the head of a local law
enforcement agency may “consider” the complaint or take “disciplinary action” on
it, including suspension or termination from employment. See TEX. GOV’T CODE
§§ 614.021–.023. Subchapter B provides in pertinent part:
§ 614.021. Applicability of Subchapter
(a) Except as provided by Subsection (b), this subchapter applies only
to a complaint against . . . (2) a fire fighter who is employed by this
state or a political subdivision of this state; (3) a peace officer under
Article 2.21, Code of Criminal Procedure, or other law who is
appointed or employed by a political subdivision of this state[.]3
§ 614.022. Complaint to Be in Writing and Signed by
Complainant
To be considered by the head of a state agency or by the head of a fire
department or local law enforcement agency, the complaint must be:
(1) in writing; and
(2) signed by the person making the complaint.
§ 614.023. Copy of Complaint to Be Given to Officer or Employee
3
The parties do not dispute that Chapter 614 of the Texas Government Code applies
to Lewis.
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(a) A copy of a signed complaint against a law enforcement officer of
this state or a fire fighter, detention officer, county jailer, or peace
officer appointed or employed by a political subdivision of this state
shall be given to the officer or employee within a reasonable time
after the complaint is filed.
(b) Disciplinary action may not be taken against the officer or
employee unless a copy of the signed complaint is given to the officer
or employee.
(c) In addition to the requirement of Subsection (b), the officer or
employee may not be indefinitely suspended or terminated from
employment based on the subject matter of the complaint unless:
(1) the complaint is investigated; and
(2) there is evidence to prove the allegation of misconduct.
Id. §§ 614.021–.023.
In applying this statute, courts have observed that it provides a measure of
procedural protection for law enforcement officers by protecting them from
adverse employment action based on unsubstantiated accusations. See, e.g., Turner
v. Perry, 278 S.W.3d 806, 823 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied).
In Staff, Mark Staff, a deputy sheriff, was terminated based on performance
deficiencies identified in a “Performance Deficiency Notice (Termination)”
provided to him by his supervisor, Lieutenant Troy Neisner. 510 S.W.3d at 439.
The deficiency notice provided details about three specific incidents and indicated
the investigation culminating in Staff’s dismissal began after the county attorney
informed the sheriff that “Staff’s behavior during a recorded traffic incident was
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‘inappropriate and needed to be addressed’” and suggested the sheriff review the
dash-cam footage of the incident. Id. Neisner informed Staff that all three incidents
violated the department policy manual, and he recommended the termination of
Staff’s employment, “effective immediately.” Id. at 440. Neisner advised Staff that
he had 30 days to appeal the termination to the sheriff for a “final” decision on the
matter. Id. The deficiency notice, signed by Neisner, was provided to Staff at the
time of his termination, which was two days after the county attorney reported his
concerns about Staff’s conduct to the sheriff. Id.
Interpreting Chapter 614, the Texas Supreme Court held that the “person
making the complaint,” as used in Section 614.022(2), was not required to be “the
victim of the alleged misconduct.” Id. at 451. The Court then concluded that “the
disciplinary process culminating in Staff’s removal from his position as a deputy
sheriff complied with both the letter and spirit of the law.” Id. at 454. The
deficiency notice signed by Neisner satisfied the requirements of a “signed
complaint setting forth the allegations of misconduct” and contained adequate
information to serve “the overarching statutory purposes of (1) reducing the risk
that adverse employment actions will be based on unsubstantiated complaints and
(2) ensuring the affected employee receives sufficient information to enable him to
defend against the allegations.” Id.
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With respect to the requirement that the signed complaint be presented to the
employee within a reasonable time, the Court noted that Staff received the
deficiency notice within two days of the initiation of an internal investigation. Id.
The Court emphasized the fact that Staff “suffered no disciplinary action until the
complaint was in hand,” explicitly stating that “there is neither an express nor
implied temporal limitation on presentment of a complaint in relation to the
imposition of discipline.” Id. The Court explained that the statute does not require:
(1) the complaint to be served before discipline is imposed; or (2) an opportunity to
be heard before disciplinary action may be taken. Id. “In some situations,
presentment of a complaint contemporaneously with the imposition of discipline
may not be ‘within a reasonable time after the complaint is filed,’” but the Court
concluded that was not the case for Staff. Id.
The Court also found that although the deficiency notice stated that Staff’s
termination was “effective immediately,” his termination was conditioned on his
right to appeal within a time certain. Reiterating that the statute contains “no
requirement that the affected employee be offered a pre-termination opportunity to
be heard or participate in the investigative process,” the Court concluded the
appeal process allowed Staff “ample opportunity to marshal any evidence bearing
on the matters identified in the Deficiency Notice and to defend himself before [the
sheriff]—the head of the law-enforcement agency—‘considered’ the complaint and
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upheld the termination decision.” Id. at 454–55. Accordingly, the sheriff complied
with the statute and summary judgment in his favor was proper.4
Here, the undisputed facts are as follows:
• On August 22nd, Chief Di Camillo received information from
Alvarado detailing Lewis’s prior employment with the Missouri City
Fire Department and Lewis’s failure to include this information on his
applications and other documents for the City of Stafford.
• On September 4th, Chief Di Camillo gave Lewis the Complaint
Notification, detailing the allegations against him, and a copy of the
August 22nd Memorandum from Alvarado.
• Also on September 4th, Chief Di Camillo terminated Lewis’s
employment and informed him of his right to appeal to Chief
Di Camillo by September 11th.
• On September 6th, Lewis filed a written appeal and met with Chief
Di Camillo regarding his termination.
• On September 11th, Chief Di Camillo notified Lewis that the original
termination decision was sustained and informed Lewis of his right to
appeal the termination decision to the city council.
• Lewis did not appeal to the city council.
Lewis’s argument is essentially that the 13-day delay between Chief
Di Camillo’s receipt of the August 22nd Memorandum and that memorandum
being provided to Lewis was unreasonable under Section 614.023 because it did
4
The Court’s decision in Staff was limited to an interpretation of the requirements
of Chapter 614 of the Texas Government Code. See Colo. Cty. v. Staff, 510
S.W.3d 435, 451–55 (Tex. 2017). The same is true here. Our decision involves
only an analysis of whether appellees complied with the requirements of Chapter
614. We do not consider whether Lewis had or could have pursued any other
remedy against appellees as a result of his termination.
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not provide him adequate time to investigate or defend against the complaint and
allegations against him before he was terminated. Specifically, in his amended
petition, Lewis alleged that “[b]y failing to provide a signed, written
complaint . . . prior to his termination,” appellees deprived him of the “ability to
investigate or defend against the complaints made against him.” He also alleged
that appellees “failed to provide him with a reasonable time to investigate and
respond to the alleged complaint” and that he received the complaint “only after
the investigation was complete.”
But the Texas Supreme Court rejected similar arguments in Staff. Here, like
in Staff, Lewis was provided a copy of the complaint on the same day he was
terminated. The Texas Supreme Court explicitly stated in Staff that Section
614.023 does not require a complaint to be served before discipline is imposed.
510 S.W.3d at 454. Also here, like in Staff, Lewis’s termination was conditioned
on his right to appeal to both Chief Di Camillo and the City of Stafford City
Council. As stated in Staff, the statute does not require the employee be given a
pre-termination opportunity to be heard. Id. Finally, Lewis argues his receipt of the
August 22nd Memorandum on the day of his termination was unreasonable
because an investigation had already been conducted and termination was
recommended by the time he received the complaint. But, per Staff, the statute
15
does not require an employee be afforded an opportunity to participate in the
investigative process. Id.
The “overarching statutory purposes” of Chapter 614’s requirements are to
(1) reduce the risk that adverse employment actions will be based on
unsubstantiated complaints, and (2) ensure the affected employee receives
sufficient information to enable him to defend against the allegations. Id. Lewis
was provided detailed information in both the August 22nd Memorandum and the
Complaint Notification to allow him to investigate the allegations against him
related to his failure to disclose his prior employment on his City of Stafford
applications. He was also afforded ample opportunity to defend himself against
these allegations during the appeal process.5
The undisputed facts demonstrate that appellees complied with the statutory
requirements of Chapter 614 of the Texas Government Code. We therefore hold
that Lewis has not demonstrated that appellees acted without legal authority or
failed to perform a purely ministerial act sufficient to waive governmental
immunity. See Heinrich, 284 S.W.3d at 372. The trial court did not err in granting
the plea to the jurisdiction.
5
We note that Lewis was initially given five business days (until September 11th)
to appeal to Chief Di Camillo. Lewis was able to present both a written and oral
appeal to Chief Di Camillo by September 6th. Lewis was also informed of his
right to further appeal to the City of Stafford City Council, but he elected not to do
so.
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Conclusion
We affirm the judgment of the trial court.
Amparo Guerra
Justice
Panel consists of Justices Kelly, Guerra, and Farris.
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