                                                                                       ACCEPTED
                                                                                   01-14-00323-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                               9/2/2015 4:16:11 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                           NO. 01-14-00323-CV

                                                                  FILED IN
                                                           1st COURT OF APPEALS
                    IN THE COURT OF APPEALS                    HOUSTON, TEXAS
                 FOR THE FIRST DISTRICT OF TEXAS           9/2/2015 4:16:11 PM
                         HOUSTON, TEXAS                    CHRISTOPHER A. PRINE
                                                                   Clerk
_________________________________________________________________

                             MARC STAFF
                                                    Appellant,

                                     v.

     COLORADO COUNTY, TEXAS, SHERIFF R. H. “CURLY” WIED,
                in his official & individual capacity,
                                                  Appellee.


                      On appeal from Cause No. 23,211
          2nd, 25th Judicial District Court, Colorado County, Texas
                    The Honorable William C. Kirkendall


           APPELLEE’S MOTION FOR REHEARING AND
                 EN BANC RECONSIDERATION


                                                              J. Eric Magee
                                            ALLISON, BASS & MAGEE, LLP
                                                        A.O. Watson House
                                                        402 West 12th Street
                                                       Austin, Texas 78701
                                                      (512) 482-0701 Phone
                                                        (512) 480-0902 Fax

                                              ATTORNEYS FOR APPELLEE
TO THE HONORABLE FIRST COURT OF APPEALS:

        Appellee Colorado County Sheriff R. H. “Curly” Wied (hereinafter “Sheriff

Wied”), in his official capacity, files this Motion for Rehearing and En Banc

Reconsideration pursuant to Texas Rules of Appellate Procedure 49. In support

thereof, Appellants would show the court as follows:

                                 INTRODUCTION

        On August 18, 2015, a three-Justice panel of this Court consisting of the

Honorable Justices Evelyn V. Keyes, Rebeca A. Huddle, and Russell Lloyd issued

an Opinion reversing the judgment of the trial court and rendering judgment in

favor of Staff declaring that Sheriff Wied violated Government Code sections

614.022 and 614.023. Further, the panel remanded the case for the trial court to

determine whether to award Appellant Marc Staff (hereinafter “Staff”) attorney’s

fees.

        The three-Justice panel erred in issuing this decision, in that sections

614.022 and 614.023 of the Government Code were erroneously applied to Staff’s

at-will employment and subsequent termination. Further, the three-Justice panel

erred in issuing this Opinion that Sheriff Wied failed to comply with sections

614.022 and 614.023 of the Government Code, if required. These errors should be

set for rehearing by the three-Justice panel. Alternatively, Sheriff Wied requests

that the errors be reviewed and reversed by the full Court of Appeals. Therefore,

                                       -2-
Sheriff Wied timely files this motion for rehearing and en banc reconsideration;

and further, respectfully requests that a majority of this Court en banc grant this

motion for reconsideration and that the case be submitted to the Court for en banc

review and disposition.

                                  ISSUES PRESENTED FOR REVIEW

Issue 1:         The Court’s three-Justice panel erroneously interpreted and
                 misapplied the facts and misconstrued the applicability of sections
                 614.022 and 614.023 of the Government Code to at-will employment
                 in Texas.

Issue 2:         The Court’s three-Justice panel erroneously held that Sheriff Wied
                 failed to comply with sections 614.022 and 614.023 of the
                 Government Code, if required.

                             ARGUMENT AND AUTHORITIES 1

1.      The Court’s three-Justice panel erroneously interpreted and misapplied
        the facts and misconstrued the applicability of sections 614.022 and
        614.023 of the Government Code to at-will employment in Texas.

        The three-Justice panel concluded that a county as “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

Opinion pg. 14. Specifically, the three-Justice panel, relying on Treadway v.

Holder, states that in that case a similar argument was made that Chapter 614,


1
  This Motion is supported by the record below which consists of the original Clerk’s Record, consisting of volumes
one (1), reference to which is by “CR ___” and the original Reporter’s Record, consisting of volumes one (1)
through three (3), reference to which is by “RR ___”.
                                                      -3-
Subchapter B did not apply because Comal County is at-will employer and peace

officers are at-will employees. 309 S.W.3d 780, 783 (Tex. App.—Austin 2010, pet.

denied). The three-Justice panel notes that the holding provided that “[w]e 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.” See Opinion

pg. 14.

      This case is not similar to the facts in Treadway v. Holder, nor are the

arguments similar concerning the applicability sections 614.022 and 614.023 of the

Government Code to at-will employment in Texas.           In Treadway, the Court

determined that it was “undisputed that Treadway was terminated for cause.”

Here, the Performance Deficiency Notice stated that Staff had previously signed an

acknowledgement indicating that:

       [you he] received a copy of the Colorado County Personnel Manual
      and [your his] understanding that it was [your his] responsibility to
      read the manual and abide by the provisions in said manual. As
      specified in the Colorado County Personnel Manual on page 4,
      Colorado County is an At-Will employer. The following specified
      grounds for termination are not 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

                                       -4-
      and is not a complete record, nor should it be considered an
      exhaustive list of the reasons for your termination.

(CR 84) (emphasis added). Lt. Neisner recommended that Staff be immediately

terminated and notified Staff that if he wished to appeal the decision, he “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.”

(CR86) (emphasis added).

      As the three-Justice panel noted, Government Code sections 614.022 and

614.023 apply “when a complaint of misconduct forms the basis of the decision to

terminate employment.” See Opinion pg. 13. In this matter, there is no such

complaint that forms the basis of the decision to terminate Staff; instead, several

examples of performance deficiencies were merely noted by Lt. Neisner. (CR 84–

86). Lt. Neisner clearly stated that such deficiencies were not the only reasons for

Staff’s termination and that the County could terminate Staff’s employment at-will

for no reason at all. Id.

      The three-Justice panel’s Opinion implies that a complaint existed against

Staff and was the sole cause leading to his termination, similar to the facts in

Treadway, where the employee was “terminated—lying to a supervisor and

falsifying training documents—resulted from a ‘complaint’ that triggers the

requirements” of sections 614.022 and 614.023. See Opinion pg. 14. This case is

distinct and clearly different from the circumstances described in Treadway. In
                                       -5-
part, the Performance Deficiency Notice demonstrates that the prosecutorial

integrity of a criminal case referred to that prosecuting authority, Colorado County

Attorney Ken Starks, by Staff, on behalf of the Colorado County Sheriff Office,

was reviewed and submitted back to Sheriff Wied. (CR84–85) Specifically, the

criminal case referred for prosecution dealt with an arrest made by Staff. Id. The

record on appeal clearly demonstrates that “on 4-26-2010, Sheriff Wied was

contacted by the Colorado Attorney, Ken Sparks, who provided him with a DVD

copy of an in car video from one of your [Staff’s criminal] cases (2010-0598), in

which [you were Staff was] assisting Highway Patrol with a motor vehicle accident

on IH-10. Mr. Sparks had a copy of the DVD because it had been forwarded

to his office by [you Staff] to assist with Prosecution after filing charges on a

suspect for Motor Vehicle Accident Interference w/ Public Duties, Assault –Public

Servant, and Resisting Arrest. Sparks suggested that the Sheriff review the in car

video to observe your (Sgt. Marc Staff’s) actions during the investigation, and

believed your [Staff’s] behavior and/or conduct was inappropriate and needed to be

addressed. Sparks also advised that his Assistant County Attorneys, who had also

reviewed the car in the video, felt [your Staff’s] conduct and/or behavior was

inappropriate and concerning enough to bring it to his attention.” Id.

      This example, noted in the Performance Deficiency Notice, is clearly not a

“complaint” by County Attorney Ken Sparks to Sheriff Wied concerning Staff.

                                        -6-
Instead, this matter demonstrates the necessary and required coordination of the

Texas judicial system between the prosecuting authority and the law enforcement

agency to effectively prosecute criminal violations. It is essential that the prosecuting

authority rely on the evidence and testimony of the law enforcement agency to

accomplish the task of prosecuting these criminal violations. A Texas sheriff’s office

is not only an integral part of this process but actively involved in prosecuting

criminal matters to a conclusion. Colorado County Attorney Ken Sparks did not file

a “complaint” against Staff nor is he considered a victim of any “complaint.” Mr.

Sparks merely notified Sheriff Wied of evidentiary problems in the criminal matter

submitted by Staff that affected the merits of that case and the integrity of the

prosecution of the matter. Significantly, Sparks did not request any disciplinary

action against Staff. He essentially notified the Sheriff that he would not be able to

proceed with the prosecution of the criminal matter and returned the patrol video to

the Sheriff’s Office.

      As articulated in the Performance Deficiency Notice, the Colorado County

Sheriff’s Office was not terminating Staff due to any particular complaint and

maintained its right to terminate his employment for any legal reason or no reason

at all. As stated in Sheriff Wied’s Brief, a sheriff in Texas, like other elected

county officials, “holds virtually absolute sway over the particular tasks or areas of

responsibility entrusted to him by state statute and is accountable to no one other

                                          -7-
than the voters for his conduct therein.” Irby v. Sullivan, 737 F.2d 1418, 1423 (5th

Cir. 1984) (citing Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.

1980). Specifically, Texas Law provides “sheriffs, and other elected county

officials virtually unbridled authority in hiring and firing their employees.”

Greenway v. Roccaforte, No. 09-08-00529-CV, 2009 WL 340683, at *4 (Tex.

App.—Beaumont Oct. 29, 2009) (quoting Renken v. Harris Cnty., 808 S.W.2d

222, 225 (Tex. App.—Houston [14th Dist.] 1991, no writ) and Irby, 737 F.2d at

1421). “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.” Renken, 808 S.W.2d at 225 (quoting Barrett v. Thomas, 649 F.2d 1193,

1199 (5th Cir. 1981), cert. denied 456 U.S. 925 (1982)).

      Accordingly, it was error for the three-Justice panel of this Court to conclude

that Government Code sections 614.022 and 614.023 applied to the termination of

Staff as an “at-will” employee, that a complaint was the basis of Staff’s

termination, and that Staff was terminated for cause. This error requires review

and reversal by the full Court of Appeals. Therefore, Sheriff Wied respectfully

requests rehearing and en banc consideration.

2.    The Court’s three-Justice panel erroneously held that Sheriff Wied
      failed to comply with sections 614.022 and 614.023 of the Government
      Code, if required.




                                        -8-
      As discussed above, the Texas Legislature has not changed the State’s nor

Colorado County’s general “at-will” employment rule by adopting sections

614.022 and 614.023 of the Government Code. As demonstrated above, Sheriff

Wied asserts that these provisions are not applicable to the termination of Staff;

however, in the alternative, Sheriff Wied fully complied with these statutory

provisions.

      The three-Justice panel erroneously concluded 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 immediately’ was a disciplinary action taken without a copy of the

signed complaint having been provided to Staff”; therefore, violating both sections

614.022 and 614.023. See Opinion pgs. 22-23.

      As shown above, the facts in the present matter are easily distinguishable

from Treadway. In Guthery v. Taylor, the “Court interpreted the statute as

requiring a written complaint from the person claiming to be a victim of

misconduct by the police officer.” 112 S.W.3d 715, 723 (Tex. App.—Houston

[14th Dist.] 2003)]. The three-Justice panel noted that the disciplinary action

“provided to Guthery and signed by the chief of police after investigating a citizen

                                       -9-
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.” See Opinion pg. 17. However, Guthery is distinguishable

from the present matter as it involved a complaint of misconduct by a private

citizen against a police officer.

      Here, the three-Justice panel erroneously determined that allegations of

misconduct existed against Staff and that these allegations “originated from outside

of the Colorado County Sheriff’s Department, specifically, with the Colorado

County Attorney, the ‘victim’ of Staff’s misconduct.” See Opinion 21. Further, the

three-Justice panel erroneously opined that Sparks made the allegation of

misconduct, but Staff was never provided with a written copy of the allegations

against him signed by Sparks.

      The record clearly demonstrates that Sparks is neither a complainant nor a

victim of any alleged misconduct. (CR84–86) As stated above, this example of a

performance deficiency by Staff (not the basis of Staff’s termination) involved

Staff’s patrol video in a criminal case referred by him to the prosecuting authority

of Colorado County. As part of the prosecutorial duties of the County Attorney and

his staff, the criminal case was sent back to the originating agency for further

review as part of that criminal prosecution concerning the evidence submitted by

Staff, the patrol video. The three-Justice panel’s conclusion that Sparks is a victim of

                                         - 10 -
misconduct and/or a complainant under these statutory provisions is inconsistent with

the plain meaning of these statutes. Further, such a conclusion is contrary to the very

nature of the judicial system and the relationship between the law enforcement

agency referring criminal matters and the prosecuting authority.

      The only requirements found in these statutory provisions state that in order

for a “complaint” to be considered by the head of a fire department or law

enforcement agency, the complaint must be in writing and signed by the person

making the complaint. Further, the Government Code states that a copy of the

complaint shall be given to the employee “within a reasonable time.” Additionally,

an employee may not be “indefinitely suspended or terminated from employment

based on the subject matter of the complaint unless it is investigated and there is

evidence to prove the allegation of misconduct.” TEX. GOV’T CODE ANN. §

614.023. Specifically, Texas Government Code, section 614.022 provides that

“[t]o 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.” TEX. GOV’T CODE ANN. §

614.022. Further, Texas Government Code, section 614.023 provides the

following:

      (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
                                        - 11 -
      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. § 614.023.

      If any victim existed under this narrow example of a performance

deficiency, the victim would clearly have been the Colorado County Sheriff’s

Office. The Record on Appeal explicitly demonstrated that, unlike Treadway, the

Colorado County Sheriff’s Office’s Performance Deficiency Notice (the internal

complaint against Staff for policy violations) was signed by Lt. Troy Neisner and

provided to Staff on April 28, 2010. (CR 84–86). Staff also acknowledged receipt

of the Performance Deficiency Notice. Id. Therefore, a written signed complaint

was provided to Staff as required by Texas Government Code section 614.022.

      Further, the three-Justice panel erroneously states that the Performance

Deficiency Notice “constitutes a disciplinary action that occurred before Staff

received a signed, written complaint of the allegations against him.” Section

614.023 does not include the word “before.” The plain language of the statutory

provision states that “[d]isciplinary action may not be taken against the officer or

employee unless a copy of the signed complaint is given to the officer or

                                       - 12 -
employee.”

      Here, Lt. Neisner provided Staff with a copy of the Performance Deficiency

Notice, the signed complaint, and recommended that Staff be immediately

terminated. (CR 84–86). Further, Lt. Neisner informed Staff that if he wished to

appeal the decision, he “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.” Id. (emphasis added). Although termination was

recommended by Lt. Neisner, Sheriff Wied made the final decision concerning

Staff’s termination. Id. and CR 88.

      As the Record on Appeal demonstrates, Sheriff Wied fully and completely

complied with all statutory requirements, including Texas Government Code,

sections 614.021 – 614.023 by: (1) obtaining a signed complaint, the Performance

Deficiency Notice, signed by Lt. Neisner (CR 84–86); (2) providing a copy of the

Performance Deficiency Notice to Staff on April 28, 2010, within a reasonable

time following the April 26, 2010, internal discussion between the County

Attorney and Sheriff (CR 84–86); (3) conducting an investigation and

demonstrating evidence proving the alleged misconduct (i.e., in-car videos of

Staff) (CR 84–86); (4) providing Staff the opportunity to address the allegations

and recommended termination by Lt. Neisner (CR 88); and (5) the final

disciplinary action taken by Sheriff Wied on June 3, 2010, following a copy of the

                                      - 13 -
Performance Deficiency Notice being provided to Staff and recommendation by

Lt. Neisner for termination. (CR 88)

      It is important to note that Subchapter B of the Texas Government Code

does not define or elaborate on the nature of a “complaint”; what is meant by a

“reasonable time”; what type of investigation must occur; nor what is meant by

“evidence to prove the allegation of misconduct.” Giving these words and phrases

their common meaning, the actions of Sheriff Wied met all of the statutory

requirements.

       Accordingly, it was error for the three-Justice panel of this Court to

conclude that Sheriff Wied failed to comply Government Code sections 614.022

and 614.023. This error requires review and reversal by the full Court of Appeals.

Therefore, Sheriff Wied respectfully requests rehearing and en banc consideration.

                                       PRAYER

        For the reasons set forth above, Appellee Sheriff R. H. “Curly” Wied

requests rehearing by the three-Justice panel. Specifically, Sheriff Wied requests

that the three-Justice panel withdraw the Opinion and affirm the trial court’s order

granting summary judgment in favor of him and affirm the trial court’s final

judgment including the award of reasonable and necessary attorneys’ fees to

Sheriff Wied. Further, Sheriff Wied alternatively requests that a majority of this




                                        - 14 -
court en banc grant this motion for reconsideration, and that the case be

resubmitted to the court for en banc review and disposition.

                                      Respectfully submitted,

                                      /s/ J. Eric Magee
                                      J. Eric Magee
                                      SBN: 24007585
                                      e.magee@allison-bass.com

                                      ALLISON, BASS & MAGEE, L.L.P.
                                      A.O. Watson House
                                      402 W. 12th Street
                                      Austin, Texas 78701
                                      (512) 482-0701 telephone
                                      (512) 480-0902 facsimile

                                      Attorney for Appellee




                                       - 15 -
                           CERTIFICATE OF COMPLIANCE

     I certify that this computer-generated Appellee’s Motion for Rehearing and
En Banc Reconsideration contains 3,085 words and complies with TEX. R. APP. P.
9.4.

                                              /s/ J. Eric Magee
                                              J. Eric Magee

                            CERTIFICATE OF SERVICE

       I certify that Appellee’s Motion for Rehearing and En Banc Reconsideration
was served via certified mail, return receipt requested, facsimile, and/or
electronically on this the 2nd day of September, 2015:

Daniel A. Krieger
Cagle & McCumber
215 E. Galveston
League City, Texas 77573

Attorney for Plaintiff

                                              /s/ J. Eric Magee
                                              J. Eric Magee




                                     - 16 -
