Opinion issued August 29, 2013




                                  In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-10-00852-CV
                         ———————————
                   EDWARD BALDRIDGE, Appellant
                                    V.
   CHUCK BRAUNER, IN HIS OFFICIAL CAPACITY AS CHIEF OF
    POLICE OF THE SPRING BRANCH INDEPENDENT SCHOOL
   DISTRICT POLICE DEPARTMENT, AND THE SPRING BRANCH
          INDEPENDENT SCHOOL DISTRICT, Appellees



                 On Appeal from the 234th District Court
                          Harris County, Texas
                    Trial Court Case No. 2009-36082



          MEMORANDUM OPINION ON REHEARING

     We originally issued our opinion and judgment in this appeal on June 27,

2013. Appellant Edward Baldridge has moved for en banc reconsideration. We
withdraw our previous opinion and judgment, and issue this opinion and a new

judgment in its place. We dismiss the motion for en banc reconsideration as

moot. 1

      After Edward Baldridge’s employment was terminated by Spring Branch

Independent School District (“District”) Police Department, he filed suit claiming

that the District and its Chief of Police, Chuck Brauner (Brauner, collectively with

District, appellees) violated Government Code section 614.023 and sought

declaratory and injunctive relief. 2 The trial court denied appellant’s motion for

summary judgment and granted appellees’ cross-motion for summary judgment.

On appeal, appellant contends that the trial court erred in granting appellees’

1
      See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 40 & n.2 (Tex. App.—
      Houston [1st Dist.] 2004, pet. denied).
2
      Government Code chapter 614, subchapter B requires that any complaint against
      a law enforcement officer or fire fighter covered by this chapter be in writing and
      signed by the person making the complaint. TEX. GOV’T CODE ANN. § 614.022
      (West 2012). Section 614.023 further provides that:
          (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.
      TEX. GOV’T CODE ANN. § 614.023 (West 2012).
                                            2
summary judgment motion and denying his summary judgment motion because:

(1) appellees were required under section 614.023 to provide him with a copy of

any complaints filed against him that formed part of the basis for the termination of

his employment, (2) they failed to do so, and (3) they were not allowed to

circumvent the requirements of section 614.023 by alleging other bases for

terminating his employment. We affirm.

                                    Background

      Appellant was employed by the District Police Department for eleven and a

half years. On Sunday, April 27, 2008, appellant responded to a call from Dr.

Walter Holmsten complaining that his fence had been damaged by several adult

softball players while they were using the Spring Branch Middle School baseball

field. Holmsten said that the ball players looked “shady” and asked appellant to

stop them from using the field. Appellant informed Holmsten that it is a public

facility and he could not force the players to leave.

      Dissatisfied with that answer, Holmsten informed appellant that his friends

and family knew members of the District school board and they would have his

job. Appellant promised to attend the next school board meeting to refute any

unfounded allegations. Appellant then sought out and spoke with the softball

players who denied damaging the fence. He advised them to stay off of the

Holmsten property and reported back to his radio dispatcher. He then called the

                                           3
dispatcher, a personal friend, on a “back line” on his personal cell phone. Upset by

Holmsten’s characterization of the ball players as “shady,” he referred to Holmsten

as a “son-of-a-bitch” and an “idiot” during the ensuing conversation.

      The next day, Holmsten complained to the District Associate Superintendent

Ruben Reyes about the incident. Reyes, in turn, contacted Brauner, gave him

Holmsten’s phone number, and asked him to look into the matter. Brauner was

unable to locate the “call slip”3 for the incident but listened to the recording of the

call between appellant and the dispatcher. Brauner interviewed Mr. and Mrs.

Holmsten who described how “intimidated” they felt and that appellant was

“angry” at times during the incident. Holmsten further complained that appellant

never contacted the players to resolve the dispute.         Upon Brauner’s request,

Holmsten submitted his complaint in writing.

      The day after he was contacted by Reyes, Brauner noted appellant wearing a

Bluetooth device while on duty, in violation of the department’s dress code. On

May 5, 2008, Brauner issued a counseling report to appellant, advising him of the

dress code policy violation. Appellant signed and acknowledged receipt of the

report.

      On May 23, 2008, Brauner recommended to the District Human Resources

Director that appellant’s employment be terminated. Brauner’s recommendation

3
      A call slip is an internal document upon which SBISD police officers are required
      to document each call for service.
                                          4
begins by discussing the internal investigation stemming from Holmsten’s

complaint. According to Brauner, his investigation showed that appellant was

“non-responsive and non-professional [sic]” during the Holmsten incident and “[i]t

is for this incident and based on my investigation of the same that I am

recommending termination at this time.” Brauner then goes on to cite a handful of

other performance deficiencies and procedural violations spanning appellant’s

decade-long tenure, including the Bluetooth incident on April 29th. Brauner’s

recommendation states: “My recommendation is based on complaints from the

community, [appellant’s] fellow officers, and other SBISD Departments.”

      Appellant was unaware of the investigation into the Holmsten incident until

Brauner presented him with a termination notice four days later. The May 27,

2008 termination notice stated that Brauner concluded that although Holmsten had

“a legitimate complaint,” appellant “took no action to resolve the matter” and “did

not request a Call Slip issued for this Call for Service.” The notice concludes:

      [Appellant] failed to respond to this Call for Service in an acceptable
      and professional manner as set forth in the SBISD Police Department
      General Orders. [Appellant’s] failure to perform includes but is not
      limited to . . . other matters of record that clearly identify
      unacceptable job performance and repeated failure to follow
      Standards of Operation during [appellant’s] tenure with the SBISD
      Police Department.




                                          5
      Appellant was not provided a copy of Holmsten’s written complaint or

Brauner’s memo before his employment was terminated, and he did not learn of

the full details of Brauner’s investigation until the discovery phase of this lawsuit.

                                     Jurisdiction

      Under the Uniform Declaratory Judgments Act (UDJA), persons “affected

by a statute, municipal ordinance, contract, or franchise may have determined any

question of construction or validity arising under the instrument, statute, ordinance,

contract, or franchise and obtain a declaration of rights, status, or other legal

relations thereunder.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004 (West Supp.

2008).    A declaratory judgment action against the government seeking a

declaration of a party’s rights and status under a statute is not barred by

governmental immunity. See Tex. Natural Res. Conservation Comm’n v. IT–Davy,

74 S.W.3d 849, 859–60 (Tex. 2002); Tex. Educ. Agency v. Leeper, 893 S.W.2d

432, 446 (Tex. 1994).      Governmental immunity, however, does bar suits for

declaratory judgment seeking a declaration of the government’s liability for money

damages. See IT–Davy, 74 S.W.3d at 859–60.

      We liberally construe appellant’s claims to seek: (1) declarations that (a)

appellees violated Government Code section 614.023, and (b) appellant was

entitled to the withdrawal of the disciplinary action, reinstatement to his original




                                           6
position and rank, and to otherwise be “made whole”;4 (2) injunctive relief to

effectuate the declarations; and (3) court costs and attorney’s fees. See TEX. GOV’T

CODE ANN. § 614.023 (West 2012); City of Waco v. Bittle, 167 S.W.3d 20, 26

(Tex. App.—Waco 2005, pet. denied) (liberally construing plaintiff’s allegations).

As such, appellant’s declaratory judgment action and request for reinstatement are

not barred by the doctrine of governmental immunity. See Leeper, 893 S.W.2d at

446 (holding UDJA necessarily waives governmental immunity for attorney’s fees

in suits to construe legislative pronouncements); City of Seagoville v. Lytle, 227

S.W.3d 401, 410–12 (Tex. App.—Dallas 2007, no pet.) (holding that declaratory

judgment, mandamus, and injunctive relief claims alleging termination in violation

of Government Code sections 614.022 and 614.023 and seeking prospective

reinstatement only were not barred by governmental immunity, but claims for back

pay and retrospective benefits were barred).

                               Summary Judgment

      Appellant filed a traditional motion for summary judgment in which he

argued that his employment was terminated because of the Holmsten incident,

appellees were required to give him a copy of Holmsten’s complaint before taking

4
      We do not construe appellant’s request to be “made whole” as a request for back
      pay or benefits. A declaratory judgment action seeking back pay and benefits is a
      suit for money damages barred by governmental immunity absent legislative
      consent. See City of Houston v. Williams, 216 S.W.3d 827, 828–29 (Tex. 2007)
      (stating that retrospective monetary claims—i.e., claims for back pay and
      benefits—are generally barred by immunity).
                                          7
disciplinary action against him, and appellees failed to do so in violation of section

614.023. Therefore, appellant argued, he was entitled to his requested declarations

and injunctive relief as a matter of law. Appellees filed a response and a cross-

motion for summary judgment in which they argued that (1) appellant’s

employment was not terminated because of the Holmsten incident, but rather

because of internal performance issues relating to how appellant handled

Holmsten’s complaint, and these types of internal performance issues are not

subject to the requirements of section 614.023, and (2) appellant’s employment

was terminated for other performance issues that are unrelated to the Holmsten

incident (e.g., the Bluetooth incident) and appellant does not argue that section

614.023 applies to any of these alternative grounds for terminating his

employment.      Appellant responded that Holmsten’s letter was clearly a

“complaint” subject to section 614.023, and that Brauner’s notice clearly indicated

that appellant’s employment was being terminated based on the Holmsten incident.

Appellant never addressed the other performance issues that appellees argued were

sufficient to justify the termination of appellant’s employment.

      On appeal, appellant argues that the trial court erred in denying his motion

for summary judgment and granting appellees’ cross-motion for summary

judgment because his employment was terminated, at least in part, as a result of the

Holmsten incident and appellees failed to provide him with a copy of Holmsten’s

                                          8
complaint before taking disciplinary action against him in contravention of section

614.023. Appellant further argues that appellees’ violation of section 614.023 is

not excused merely because other bases for terminating his employment existed.

Alternatively, appellant contends that appellees also violated section 614.023 by

not providing him with a copy of Brauner’s “complaint” regarding the various

internal policy violations that also formed the basis of the termination of

appellant’s employment.

      Appellees counter that the trial court’s grant of their motion for summary

judgment was proper because appellant was not terminated as a result of the

Holmsten incident, but rather as a result of internal performance issues spanning

appellant’s tenure which included the unprofessional phone call, failing to

complete a call slip, violating policy by wearing a Bluetooth device, and a handful

of other infractions.5 Appellees further contend that even if they had been required

to provide appellant with a copy of Holmsten’s complaint prior to terminating his

employment, they were nonetheless entitled to summary judgment based upon

numerous other grounds for termination unrelated to the Holmsten incident (e.g.,

the Bluetooth incident), which were sufficient grounds, alone, for termination.


5
      Specifically, appellees point to the following internal policy infractions that are
      unrelated to the Holmsten incident: 2008 (violating dress code by wearing
      Bluetooth device while on duty), 2007 (failing to complete reports, clear call slips,
      and conduct truancy checks), 2004 (failing to complete accident report), 2002
      (failing to report for duty), and 2001 (failing to properly handle bank deposit).
                                            9
A.    Standard of Review

      “Declaratory judgments decided by summary judgment are reviewed under

the same standards of review that govern summary judgments generally.” Cadle

Co. v. Bray, 264 S.W.3d 205, 210 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied); see TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (West Supp. 2008).

When both sides move for summary judgment and the trial court grants one motion

and denies the other, we review both sides’ summary judgment evidence and

determine all questions presented; and, if we find the trial court erred, we will

reverse and render the judgment the trial court should have rendered. See FM

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).

When, as here, the summary judgment does not specifically state the grounds on

which it was granted, we must affirm the summary judgment if any of the asserted

grounds are meritorious. Id.

      The issues raised in this appeal involve statutory interpretation subject to de

novo review. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009). As with all

questions of statutory interpretation, our objective is to determine and give effect to

the legislature’s intent, looking to the statute’s plain language and avoiding any

construction that would render a provision meaningless. See, e.g., id.; Columbia

Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008).




                                          10
B.    Subchapter B of Government Code Chapter 614

      Subchapter B of Government Code Chapter 614 governs complaints against

peace officers who are not covered by a civil service statute and describes the

procedures that must be followed before any disciplinary action may be taken

against such officers. See TEX. GOV’T CODE ANN. §§ 614.021–.023 (West 2012).6

Specifically, section 614.022 requires that any complaint against such an officer

must be in writing and signed by the complainant before it can be considered by

the head of a local law enforcement agency. Id. at § 614.022. A copy of the

complaint must also be given to the officer a reasonable time after it is filed. Id. at

§ 614.023(a). Disciplinary action, including termination, may not be taken against

the officer until the officer receives a copy of the complaint, “the complaint is

investigated; and . . . there is evidence to prove the allegation of misconduct.” Id.

at § 614.023(c).

C.    Discussion

      The summary judgment evidence establishes that appellant’s employment

was terminated based upon his response to the Holmsten incident and other,

unrelated internal performance issues including the Bluetooth incident. Although

he did not raise this issue in his motion for summary judgment or in his response to


6
      See also Guthery v. Taylor, 112 S.W.3d 715, 717 (Tex. App.—Houston [14th
      Dist.] 2003, no pet.) (stating sections 624.022 and 614.023 only apply to police
      officers not covered by civil service statute).

                                          11
appellees’ motion, appellant argues on appeal that section 614.023 applies to

internal, as well as external, complaints against peace officers. See Treadway v.

Holder, 309 S.W.3d 780, 784 (Tex. App.—Austin 2010, pet. denied) (holding

Government Code section 614.023 applies to “any allegation of misconduct that

could result in disciplinary action,” including complaints initiated solely by

officer’s supervisor). Assuming without deciding that section 614.023 applies to

internal performance issues, we conclude that appellees complied with section

614.023 when they terminated appellant’s employment based upon the Bluetooth

incident.

      Here, appellees established that appellant was informed of the allegation

against him—wearing a Bluetooth device while on duty in violation of

departmental policy. Brauner gave appellant a counseling report that advised

appellant of the dress code policy violation prior to the termination of appellant’s

employment. Appellant signed and acknowledged receipt of the report. Brauner,

who witnessed appellant wearing the Bluetooth device while on duty, investigated

the claim by discussing the matter with appellant.

      Although he did not specifically recall wearing the device on April 29, 2008,

appellant testified at his deposition that he had explained to Brauner that given the

time he was supposedly seen wearing the device, he was probably on the phone

confirming that his child had arrived safely at home after school. He also testified

                                         12
that he knew that it was against departmental policy to wear a Bluetooth device

while on duty, but he nevertheless wore it for “safety” reasons.        Appellees’

summary judgment evidence included copies of (1) the District’s policy regarding

the wearing of Bluetooth devices while on duty, (2) the counseling report that was

given to appellant regarding the Bluetooth incident, and (3) relevant excerpts from

appellant’s deposition.

       Although appellant argues on appeal that internal performance allegations

are subject to section 614.023, citing to Treadway, appellant does not now, nor has

he ever argued that the counseling report he was given for the Bluetooth device

incident prior to the termination of his employment was insufficient under this

section. See 309 S.W.3d at 784. Appellant also never argued to the trial court that

the underlying allegation was false, unsubstantiated, or an insufficient basis for

termination. In fact, appellant never even addressed the Bluetooth incident at the

trial court level.

       Our review of the evidence and trial court arguments leads us to conclude

that appellees met their burden of establishing that they were entitled to summary

judgment based on the Bluetooth incident as a matter of law, and that appellant

failed to raise a fact question with regard to this issue. As such, the trial court

properly granted appellees’ motion for summary judgment and denied appellant’s

motion.

                                        13
                                   Conclusion

        We affirm the judgment of the trial court.




                                             Jim Sharp
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.




                                        14
