Marc Staff v. Colorado County , Texas Sheriff R. H. "Curly " Wied, in His Official & Individual Capacity , 2015 Tex. App. LEXIS 8645 ( 2015 )

Opinion issued August 18, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00323-CV
———————————
MARC STAFF, Appellant
V.
COLORADO COUNTY, TEXAS SHERIFF R.H. "CURLY" WIED, IN HIS
OFFICIAL AND INDIVIDUAL CAPACITY, Appellee
On Appeal from the 2nd 25th District Court
Colorado County, Texas
Trial Court Case No. 23,211
OPINION
Appellant, Marc Staff, a former Colorado County Sheriff’s Deputy, brought
a declaratory judgment action against Colorado County Sheriff R.H. “Curly” Wied
after he was terminated from his position as a peace officer. Staff sought
declaratory relief, injunctive relief, and attorney’s fees. Both Staff and Sheriff
Wied moved for summary judgment, and the trial court granted Wied’s summary
judgment motion and denied Staff’s motion. The trial court entered final judgment
in favor of Sheriff Wied for $10,483.07 in reasonable attorney’s fees and $40,000
in conditional appellate attorney’s fees. In two issues, Staff contends that the trial
court erred in granting Wied’s motion for summary judgment and in failing to
properly interpret and apply Government Code sections 614.022 and 614.023.
We reverse and remand.
Background
Staff joined the Colorado County Sheriff’s Department as a deputy sheriff in
October 2005. In April 2010, Lieutenant Troy Neisner began an investigation of
Staff, and he ultimately informed Staff, on April 28, 2010, that the Sheriff’s
Department was terminating his employment. Staff filed an administrative appeal
with Sheriff Wied, seeking reinstatement. Sheriff Wied denied the appeal and
upheld Staff’s termination.
Staff subsequently filed a declaratory judgment action in the district court,
seeking a declaration that Colorado County and Sheriff Wied had violated
Government Code section 614.022, which requires complaints against peace
officers to be in writing and signed by the person making the complaint, and
2
section 614.023, which requires a copy of the complaint to be provided to the
officer.1 Staff sought declaratory relief, all available monetary relief, and
injunctive relief.2
Staff moved for partial summary judgment on his own claims. In this
motion, Staff alleged that Lieutenant Neisner received a complaint about Staff
from Colorado County Attorney Ken Sparks and “conducted an ex parte
investigation” of Staff without providing Staff a copy of the complaint or allowing
Staff the opportunity to respond to the allegations in the complaint. He further
alleged that he appealed his termination to Sheriff Wied, who denied the appeal
“without giving any type of reasoning or explanation as to his decision.” Staff
argued that the “Performance Deficiency Notice” that Lieutenant Neisner provided
to him at the time of his termination did not meet the requirements of Government
Code section 614.022 because it did not qualify as a “written and signed
complaint” against Staff. Moreover, Lieutenant Neisner did not provide Staff with
a copy of the allegations against him until Staff received the Performance
1
See TEX. GOV’T CODE ANN. §§ 614.022–.023 (Vernon 2012).
2
Staff requested the following injunctive relief: (1) “That Defendant be enjoined
from withholding written complaints made against peace officers”; (2) “[T]hat
Defendant institute policies to insure that the Colorado County Sheriff’s
Department not discharge or discipline current or former employees in violation of
the Texas Government Code”; and (3) “[T]hat Colorado County, Texas implement
procedures to protect its current, past and future employees from subjective and
overreaching claims.”
3
Deficiency Notice at the time of his termination, and, therefore, he did not receive
the opportunity to defend himself against the allegations. Staff argued that he had
established that Sheriff Wied had violated the Government Code as a matter of law
and that summary judgment on his declaratory judgment claims was proper.
As summary judgment evidence, Staff attached a letter from Sheriff Wied to
Staff’s counsel dated May 12, 2010, after Staff’s termination but before he had
filed an administrative appeal. In the letter, Sheriff Wied stated that Colorado
County is an “at will” employer, but that Staff could file a written appeal of the
termination decision with Wied and Wied would consider whether to uphold the
termination. Staff also attached a copy of his written appeal of the termination
decision to Sheriff Wied, in which he argued that, contrary to the Government
Code, “it doesn’t appear that there was ever a signed, written complaint by the
person who was the subject of the alleged mistreatment” and that, Colorado
County’s status as an “at will” employer notwithstanding, Staff was entitled to
notice of the complaint and an opportunity to respond prior to having his
employment terminated.
Staff also attached the Performance Deficiency Notice that he received from
Lieutenant Neisner on April 28, 2010. This notice stated:
You (Marc Staff) previously signed an acknowledgement indicating
that you received a copy of the Colorado County Personnel Manual
and your understanding that it was your responsibility to read the
manual and to abide by the provisions in said manual. As specified in
4
the Colorado County Personnel Manual on page 4, Colorado County
is an At-Will employer. The following specified grounds for
termination are not all-inclusive since the Colorado County Sheriff’s
Office maintains the right to terminate employment for any legal
reason or no reason at all. The following is merely written
documentation of recent deficiencies in your performance and is not a
complete record, nor should it be considered an exhaustive list of the
reasons for your termination.
The Performance Deficiency Notice recited that Colorado County Attorney Ken
Sparks contacted Sheriff Wied on April 26, 2010, provided him with a DVD
recording of a traffic stop in which Staff had participated, and expressed his
concern that Staff’s behavior during the traffic stop was inappropriate.
Lieutenant Neisner reviewed the recording and determined that Staff had
engaged in “unacceptable and unprofessional” behavior, including taunting the
subject of the traffic stop and repeatedly screaming at the subject “in an apparent
rage” to provide his license and insurance. Lieutenant Neisner and another deputy
then performed a “spot check” of other recordings of traffic stops captured by
Staff’s in-car video system and discovered at least one additional incident in which
Staff had behaved in an “unacceptable and grossly unprofessional” manner during
a traffic stop. Lieutenant Neisner recommended “immediate termination,” and the
notice contained the following statement:
Effective Immediately:
Your employment with Colorado County Sheriff’s Department is
terminated and your services are no longer needed. If you wish to
appeal the above decision, you must do so in writing within 30 days to
5
the Sheriff. The Sheriff will make a decision on whether or not to
uphold the above decision. The Sheriff’s decision will be final.
Sheriff Wied also moved for partial summary judgment on Staff’s
declaratory judgment claims. Sheriff Wied argued that sheriffs have “virtually
unbridled authority in hiring and firing their employees” and that Staff, as a deputy
sheriff, served at the pleasure of the sheriff and could be terminated for any reason
or no reason. He further argued that Colorado County was an at-will employer,
that it retained the right to “terminate any employee at any time, with or without
any condition, benefit, policy, or privilege of employment at any time, with or
without notice,” and that, when he accepted his employment, Staff signed an
acknowledgement of this policy.
Sheriff Wied also argued that Government Code sections 614.022 and
614.023 did not apply to Staff because Staff’s termination “was not based on a
specific complaint nor does any part of the termination or statutory provisions
change the status of ‘at-will’ employment.” Alternatively, Sheriff Wied argued
that, if sections 614.022 and 614.023 did apply, he had complied with those
provisions because Staff received a copy of the Performance Deficiency Notice,
which qualified as a “written signed complaint,” Wied was the one who made the
final decision concerning Staff’s employment, the Sheriff’s Department
investigated the allegations brought to its attention by Sparks, and evidence existed
to support the allegations of misconduct.
6
Sheriff Wied attached as summary judgment evidence an excerpt from the
Colorado County Personnel Manual which stated:
Colorado County is an employment at-will employer. No contract,
either expressed or implied, exists between the County and any
employee for any duration. The County also retains the right to
terminate any employee at any time, with or without notice, for any
legal reason or no reason. The County also retains the right to change
any condition, benefit, policy, or privilege of employment at any time,
with or without notice. The employee also has the right to sever the
relationship at any time, with or without notice.
Sheriff Wied also attached a signed acknowledgement by Staff that he had
received a copy of the Colorado County Personnel Manual and that he understood
that his “employment is terminable at will so that both the county and its
employees remain free to [choose] to end their relationship at any time for any
reason or no reason.” Sheriff Wied also attached as summary judgment evidence
the Performance Deficiency Notice and a copy of his June 3, 2010 letter to Staff’s
attorney upholding the termination.
The trial court granted Sheriff Wied’s motion for summary judgment and
denied Staff’s motion. The trial court entered final judgment in favor of Sheriff
Wied for $10,483.07, representing his reasonable and necessary trial-level
attorney’s fees and $40,000 in conditional appellate attorney’s fees. This appeal
followed.
7
Summary Judgment
In his first issue, Staff contends that the trial court erred in rendering
summary judgment in favor of Sheriff Wied. In his second issue, he contends that
the trial court erred by failing to properly interpret and apply Government Code
sections 614.022 and 614.023. We consider these issues together.
A. Standard of Review
When both parties move for summary judgment and the trial court grants
one motion and denies the other, we review both parties’ summary judgment
evidence and determine all questions presented. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005); FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872 (Tex. 2000). Each party bears the burden of establishing that he
is entitled to judgment as a matter of law. City of Santa Fe v. Boudreaux, 256
S.W.3d 819, 822 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also TEX. R.
CIV. P. 166a(c) (“The judgment sought shall be rendered forthwith if . . . there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law on the issues expressly set out in the motion or in an answer or
any other response.”). If we determine that the trial court erred, we render the
judgment that the trial court should have rendered. Dorsett, 164 S.W.3d at 661;
FM Props., 22 S.W.3d at 872. If the trial court’s order does not specify the
grounds for its summary judgment ruling, we affirm the summary judgment if any
8
of the theories presented to the trial court and preserved for appellate review are
meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003).
When we construe statutes, as we must in this case, the primary rule of
statutory interpretation is that we must ascertain and give effect to the intent of the
Legislature. Harris Cnty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105
S.W.3d 88, 97 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (citing Cont’l
Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000)).
We must consider the plain language of the statute, and we may consider the
legislative history and the consequences from alternative constructions. Id. (citing
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000) and TEX. GOV’T
CODE ANN. § 311.023).
Under the Uniform Declaratory Judgments Act, a person whose rights,
status, or other legal relations are affected by a statute may have a court determine
any question of construction or validity arising under the statute and may obtain a
declaration of his rights under the statute. TEX. CIV. PRAC. & REM. CODE ANN.
§ 37.004(a) (Vernon 2015); Guthery v. Taylor, 112 S.W.3d 715, 720 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). We review declaratory judgments under the
same standards used for other judgments and decrees and look to the procedure
used to resolve the issue at trial to determine the appropriate appellate standard of
9
review. Guthery, 112 S.W.3d at 720; see also TEX. CIV. PRAC. & REM. CODE ANN.
§ 37.010 (Vernon 2015) (“All orders, judgments, and decrees under this chapter
may be reviewed as other orders, judgments, and decrees.”). Because, in this case,
the trial court resolved the case on competing summary judgment motions, we
review the propriety of the trial court’s denial of the declaratory judgment under
the same standards we apply to the summary judgment. Guthery, 112 S.W.3d at
720.
B. Government Code Sections 614.022 and 614.023
Government Code Chapter 614, Subchapter B—entitled “Complaint Against
Law Enforcement Officer or Fire Fighter”—addresses a narrow category of
circumstances in which a complaint of misconduct is made against a peace officer
or fire fighter, and it requires a specified procedure to be followed before the peace
officer or fire fighter may be terminated. See TEX. GOV’T CODE ANN. § 614.022
(Vernon 2012) (requiring, for complaint to be considered by head of local law
enforcement agency, that complaint be in writing and signed by person making
complaint); id. § 614.023 (Vernon 2012) (providing that disciplinary action may
not be taken against officer unless signed copy of complaint is given to officer
within reasonable time after complaint is filed). Subchapter B applies to
complaints made against a peace officer as defined by Code of Criminal Procedure
article 2.12 or pursuant to “other law [and] who is appointed or employed by a
10
political subdivision of this state.” 3 TEX. GOV’T CODE ANN. § 614.021(a)(1), (3)
(Vernon 2012).
Government Code section 614.022 provides that for a complaint against a
peace officer “[t]o be considered by the head of a . . . local law enforcement
agency, the complaint must be: (1) in writing; and (2) signed by the person making
the complaint.” Id. § 614.022.
Section 614.023 then provides:
(a) A copy of a signed complaint against a . . . 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.
3
Subchapter B does not apply to peace officers “appointed or employed by a
political subdivision that is covered by a meet and confer or collective bargaining
agreement under Chapter 143 or 174, Local Government Code, if that agreement
includes provisions relating to the investigation of, and disciplinary action
resulting from, a complaint against a peace officer . . . .” TEX. GOV’T CODE ANN.
§ 614.021(b) (Vernon 2012). Here, neither party asserts that Colorado County is
covered by a meet and confer or collective bargaining agreement under Local
Government Code Chapters 143 or 174.
11
Id. § 614.023.
These statutes provide “covered employees with procedural safeguards to
reduce the risk that adverse employment actions would be based on
unsubstantiated complaints.” Turner v. Perry, 278 S.W.3d 806, 823 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied). In enacting these statutes, the Legislature
“determined that the value of these protections outweighs the fiscal and
administrative burdens incurred by complying with statutory requirements.” Id.
1. Applicability of sections 614.022 and 614.023
In contending that the trial court properly rendered summary judgment in his
favor, Sheriff Wied first argues that Government Code sections 614.022 and
614.023 are not applicable in this case because Colorado County is an “at-will”
employer, and, as a deputy sheriff, Staff had no legal entitlement to his continued
employment and could be terminated for any reason or no reason and without any
notice.
The general rule in Texas is that, absent a specific agreement to the contrary,
“employment may be terminated by the employer or the employee at will, for good
cause, bad cause, or no cause at all” and that this rule applies by statute to deputy
sheriffs. Cnty. of Dallas v. Wiland, 216 S.W.3d 344, 347 (Tex. 2007) (quoting
Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998), and
TEX. LOC. GOV’T CODE ANN. § 85.003(c) (Vernon 2008) (“A deputy serves at the
12
pleasure of the sheriff.”)). “Texas law provides ‘sheriffs, and other elected county
officials, virtually unbridled authority in hiring and firing their employees.’”
Renken v. Harris Cnty., 808 S.W.2d 222, 225 (Tex. App.—Houston [14th Dist.]
1991, no writ) (quoting Irby v. Sullivan, 737 F.2d 1418, 1421 (5th Cir. 1984)).
“Deputy sheriffs have no legal entitlement to their jobs as public employees; the
sheriff may fire them for many reasons or for no articulate reason at all. . . . More
importantly, nothing in the Harris County grievance policy purports to limit the
authority of elected officials like Constable Moore to discharge any employee.”
Id. (quoting Barrett v. Thomas, 649 F.2d 1193, 1199 (5th Cir. 1981)).
However, either the State or the employer may implement policies and
procedures for resolving complaints and grievances without altering the
employee’s status as an at-will employee. See id. “The State may ‘require
procedures for reasons other than protection against deprivation of substantive
rights . . . .’” Id. (quoting Henderson v. Sotelo, 761 F.2d 1093, 1097 (5th Cir.
1985)).
Government Code sections 614.022 and 614.023 do not limit the authority of
the Colorado County Sheriff to discharge an employee; instead, the statutes merely
require that, when a complaint of misconduct forms the basis of the decision to
terminate employment, the employee must receive a signed written copy of that
complaint before discipline may be imposed. See id. (“Thus, even if appellant had
13
certain procedural rights, such as a right to a hearing, appellant might still be an
‘at-will’ employee.”).
Thus, the fact that a county is an at-will employer does not preclude
application of sections 614.022 and 614.023 where a county employee has been
terminated because a complaint has been made against him or following an
investigation, as opposed to being terminated “at will” for no cause. See Treadway
v. Holder, 309 S.W.3d 780, 783 (Tex. App.—Austin 2010, pet. denied) (addressing
similar argument that Chapter 614, Subchapter B does not apply because Comal
County is at-will employer and peace officers are at-will employees and holding,
“We need not address any effect Subchapter B might have on at-will employment
because it is undisputed that Treadway was terminated for cause. The issue, then,
is not whether she could have been terminated without cause, but whether the
cause for which she was terminated—lying to a supervisor and falsifying training
documents—resulted from a ‘complaint’ that triggers the requirements of
Subchapter B”). We conclude that Colorado County’s status as an “at-will”
employer does not preclude application of Government Code sections 614.022 and
614.023.
We therefore turn to whether the Colorado County Sheriff’s Department
complied with Subchapter B in this case.
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2. Compliance with sections 614.022 and 614.023
Staff argues that the trial court erred in granting summary judgment to
Sheriff Wied because the court failed to properly interpret and apply Government
Code sections 614.022 and 614.023, depriving him of statutory protections to
which he was entitled. Sheriff Wied responds that the sections are inapplicable to
this case by their terms.
In Guthery v. Taylor, the Fourteenth Court of Appeals analyzed whether a
“Notice of Proposed Disciplinary Action,” provided to a police officer by his
superior officer after an investigation had occurred, constituted a “complaint”
under sections 614.022 and 614.023. 112 S.W.3d at 722–24. In Guthery, a citizen
telephoned the Sugar Land Police Department to complain that an officer had
damaged her front door. Id. at 718. After the police department determined that
Guthery was the only officer at the citizen’s house that night, the department
conducted an investigation, and ultimately concluded that Guthery had caused
damage to the citizen’s property. Id. Taylor, the police chief, reviewed the
investigation report and issued a signed “Notice of Proposed Disciplinary Action”
to Guthery, informing him that Taylor intended to suspend Guthery for three days
and requesting his presence at a meeting scheduled for six days later to respond to
the allegations. Id. After the meeting, Taylor approved the suspension. Id. at 719.
15
In determining whether the police department had violated sections 614.022
and 614.023 because Guthery never received a written complaint signed by the
affected citizen, our sister court first looked to Local Government Code section
143.123, which governs the investigation of fire fighters and police officers in
municipalities that have adopted civil service programs and which has a “similar
nature” and purpose to section 614.022. Id. at 722; see TEX. LOC. GOV’T CODE
ANN. § 143.123 (Vernon 2008). Section 143.123 provides:
Before an investigator may interrogate a fire fighter or police officer
who is the subject of an investigation, the investigator must inform the
fire fighter or police officer in writing of the nature of the
investigation and the name of each person who complained about the
fire fighter or police officer concerning the matters under
investigation. An investigator may not conduct an interrogation of a
fire fighter or police officer based on a complaint by a complainant
who is not a peace officer unless the complainant verifies the
complaint in writing before a public officer who is authorized by law
to take statements under oath.
TEX. LOC. GOV’T CODE ANN. § 143.123(f). The court noted that section 143.123
defines “complainant” as “a person claiming to be the victim of misconduct by a
fire fighter or police officer.” Guthery, 112 S.W.3d at 722 (quoting TEX. LOC.
GOV’T CODE ANN. § 143.123(a)(1)). Section 143.123 also explicitly requires
complaints to be in writing and implicitly requires complaints to be signed, as
complaints made by complainants who are not peace officers must be verified. See
id.
16
Ultimately, the court concluded that a “complaint,” as used in sections
614.022 and 614.023, “must be signed and in writing to be the victim’s
complaint . . . .” Id. at 723; see also Turner, 278 S.W.3d at 822 (“[T]he complaint
must be in writing and signed by the person who claims to be the victim of
misconduct.”). The “Notice of Proposed Disciplinary Action,” which was
provided to Guthery and signed by the chief of police after investigating a citizen
complaint against Guthery, therefore did not qualify as a “complaint” under
sections 614.022 and 614.023 because it was not signed by the victim of the
alleged misconduct. Guthery, 112 S.W.3d at 723; Harris Cnty. Sheriff’s Civil
Serv. Comm’n v. Guthrie, 423 S.W.3d 523, 530 (Tex. App.—Houston [14th Dist.]
2014, pet. denied) (“[A] ‘signed complaint’ under 614.023 could only be a
complaint written and signed by a person claiming to be the victim of
misconduct.”). The court further held that, pursuant to section 614.023, the police
chief “had a clear duty to refrain from taking disciplinary action against Guthery
when the only ‘complaint’ offered to satisfy sections 614.022 and 614.023 was the
Chief’s ‘Notice of Proposed Disciplinary Action.’” Guthery, 112 S.W.3d at 724.
In Treadway v. Holder, the Austin Court of Appeals considered a situation
in which the complaint against the peace officer, Treadway, originated from within
the Comal County Sheriff’s Office, instead of from a citizen. 309 S.W.3d at 781.
In that case, a lieutenant within the sheriff’s department received a complaint from
17
a shift sergeant that Treadway was not meeting with a trainee officer as frequently
as she ought to have been. Id. The lieutenant investigated the complaint and
determined that Treadway fabricated reports. Id. The sheriff ordered Treadway’s
termination. Id. Treadway argued that she did not learn about the allegations
against her until after her discharge and that she never received a signed, written
complaint regarding the allegations. Id.
The Austin court, as the Fourteenth court did in Guthery, also considered
Local Government Code section 143.123 in construing the definition of
“complaint” in sections 614.022 and 614.023. Id. at 783–84. The Austin court
noted that the language of section 143.123 suggested that “‘complaint’ includes
internal complaints by other officers” and that “the legislature did not intend the
term ‘complaint’ to be limited to external citizen complaints.” Id. at 784. The
court concluded that “a ‘complaint’ for purposes of [Government Code Chapter
614,] Subchapter B is any allegation of misconduct that could result in disciplinary
action.” Id. The court stated that it was immaterial that the allegations against
Treadway were made by her supervisor; instead, the relevant facts were that “there
were allegations of misconduct” and that “these allegations led to Treadway’s
termination.” Id. The plain language of section 614.023 requires a conclusion that
“any ‘allegation of misconduct’ for which disciplinary action may be imposed
represents a complaint, regardless of the source.” Id.
18
The Austin court reasoned that this interpretation of sections 614.022 and
614.023 served the statutory purpose of “protect[ing] peace officers from
disciplinary action based on unsubstantiated allegations of misconduct” and that,
by failing to provide a signed, written complaint to Treadway prior to her
termination, Treadway’s “‘ability to investigate or defend against the complaints
made against h[er]’ was impaired.” Id. at 785 (quoting Turner, 278 S.W.3d at
823).
Here, it is undisputed that the investigation into Staff’s conduct during
traffic stops began when Colorado County Attorney Ken Sparks contacted the
Sheriff’s Department, provided the video recording of a traffic stop that Staff had
conducted, and expressed his concern that Staff’s behavior during the stop was
inappropriate. It is also undisputed that Sparks never wrote and signed a complaint
regarding his concerns over Staff’s behavior and that Staff, therefore, never
received such a complaint completed by Sparks setting out the allegations against
him. The only documentation that Staff received concerning the allegations was
the Performance Deficiency Notice, completed and signed by Lieutenant Neisner
on April 28, 2010. This document described Sparks’ contact with the Sheriff’s
Department and the ensuing investigation, and this document also contained
Lieutenant Neisner’s recommendation that Staff’s employment be terminated. The
last paragraph of the Performance Deficiency Notice stated:
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Effective Immediately:
Your employment with Colorado County Sheriff’s Department is
terminated and your services are no longer needed. If you wish to
appeal the above decision, you must do so in writing within 30 days to
the Sheriff. The Sheriff will make a decision on whether or not to
uphold the above decision. The Sheriff’s decision will be final.
Sheriff Wied argues, “There is no statutory provision requiring a written
complaint when the prosecutorial integrity of a criminal case is discussed between
the prosecuting authority and the law enforcement agency that made the referral
for prosecution.” However, Government Code Chapter 614, Subchapter B does
not make any distinction between the types of complaints to which it applies. It
applies only to certain individuals, but the statutory language does not limit the
applicability to certain kinds of complaints. Compare TEX. GOV’T CODE ANN.
§ 614.021(a) (providing that subchapter applies only to complaints against law
enforcement officer of State of Texas, fire fighters employed by State or political
subdivision, peace officers appointed or employed by political subdivisions, and
detention officers or county jailers appointed or employed by political
subdivisions) with id. § 614.022 (providing that, “[t]o be considered by the head of
a . . . local law enforcement agency, the complaint must be: (1) in writing; and
(2) signed by the person making the complaint” and providing no limitation on
types of complaints to which statute applies). As the Austin court held in
Treadway, the source of the allegations of the misconduct is immaterial; rather, “a
20
‘complaint’ for purposes of Subchapter B is any allegation of misconduct that
could result in disciplinary action.” 309 S.W.3d at 784. We conclude that this
argument is without merit.
Alternatively, Sheriff Wied contends that the Performance Deficiency
Notice constitutes a written, signed complaint that complies with Government
Code section 614.022. However, the allegations of misconduct against Staff
originated from outside of the Colorado County Sheriff’s Department, specifically,
with the Colorado County Attorney, the “victim” of Staff’s misconduct. The
Colorado County Attorney did not sign the complaint. The Fourteenth court held
in Guthery, however, that section 614.022 requires that “the ‘complaint’ . . . must
be signed and in writing to be the victim’s complaint,” and an internally-generated
notice relating to a proposed disciplinary procedure does not qualify as the
statutorily-required complaint. 112 S.W.3d at 723. Here, Sparks made the
allegation of misconduct, but Staff was never provided with a written copy of the
allegations against him signed by Sparks. Instead, the only written notice of the
allegations that he received was the Performance Deficiency Notice, completed
and signed by Lieutenant Neisner, on the date of his termination.
We also observe that, unlike the “Notice of Proposed Disciplinary Action”
in Guthery, which informed Guthery that Chief Taylor intend to suspend him for
three days and requested that he meet with Taylor several days later before the
21
imposition of discipline, here, Lieutenant Neisner gave Staff the Performance
Deficiency Notice, informing him of the allegations and investigation against him,
on the same day the Sheriff’s Department terminated his employment. See 112
S.W.3d at 718.
Finally, Sheriff Wied argues that the Performance Deficiency Notice was
merely a “recommendation” by Lieutenant Neisner and that the disciplinary action
did not occur until June 3, 2010, when Sheriff Wied denied Staff’s administrative
appeal of the termination decision. We note, however, that the Performance
Deficiency Notice itself, while informing Staff of his right to appeal the decision to
Sheriff Wied, states that the termination of Staff’s employment is “effective
immediately.” This constitutes a disciplinary action that occurred before Staff
received a signed, written complaint of the allegations against him. See TEX.
GOV’T CODE ANN. § 614.023(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.”).
We conclude that under both Guthery and Treadway, the Performance
Deficiency Notice Staff received did not constitute a “complaint” pursuant to
section 614.022, that Sheriff Wied failed to provide notice of the written complaint
signed by the victim of the alleged misconduct, and that the Performance
Deficiency Notice by which Staff’s employment was terminated “effective
22
immediately” was a disciplinary action taken without a copy of the signed
complaint having been provided to Staff. Therefore, Sheriff Wied violated both
section 614.022 and section 614.023 when he terminated Staff’s employment
before Staff received a copy of a signed, written complaint by the victim of the
alleged misconduct.
We note that this construction and application of sections 614.022 and
614.023 prevents the impairment of a peace officer’s ability to investigate or
defend against the complaints of misconduct made against him and protects peace
officers “from disciplinary action based on unsubstantiated allegations of
misconduct.” See Treadway, 309 S.W.3d at 785; Turner, 278 S.W.3d at 823;
Guthery, 112 S.W.3d at 723 n.11 (stating that allowing “Notice of Proposed
Disciplinary Action” completed by chief of police to suffice as statutorily-required
signed, written complaint “would result in an officer’s being disciplined based on
another officer’s hearsay characterization of a citizen’s complaint, as opposed to
the actual content of the complaint itself”).
We therefore hold that the trial court erred in granting Sheriff Wied’s motion
for summary judgment and denying Staff’s motion for partial summary judgment.
We sustain Staff’s first and second issues.
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C. Attorney’s Fees
Staff sought summary judgment only on the issue of whether Sheriff Wied
violated the Government Code but also pled, in his declaratory judgment action,
for attorney’s fees under the Uniform Declaratory Judgment Act. See TEX. CIV.
PRAC. & REM. CODE ANN. § 37.009 (Vernon 2015) (“In any proceeding under this
chapter, the court may award costs and reasonable and necessary attorney’s fees as
are equitable and just.”). The trial court rendered judgment awarding Sheriff Wied
attorney’s fees, but the record contains no evidence of Staff’s attorney’s fees. We
may not, therefore, render judgment on Staff’s attorney’s fees, and we remand the
case to the trial court to determine whether an award of attorney’s fees to Staff is
“equitable and just.”
Conclusion
We reverse the judgment of the trial court and render judgment in favor of
Staff declaring that Sheriff Wied violated Government Code sections 614.022 and
614.023. We remand the case for the trial court to determine whether to award
Staff attorney’s fees.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
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