      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00752-CV



                                     Patrick Stacks, Appellant

                                                  v.

                             Burnet County Sheriff’s Office, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-14-001970, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                                            OPINION


                This appeal concerns the circumstances of Patrick Stacks’ termination from his

position as a deputy sheriff with the Burnet County Sheriff’s Office (BCSO). As required by law,

BCSO reported the termination to the Texas Commission on Law Enforcement (the Commission)

and stated that he had been dishonorably discharged. See Tex. Occ. Code § 1701.452 (requiring

submission of employment-termination reports); 37 Tex. Admin. Code § 217.7(b) (2018) (Texas

Comm’n on Law Enf’t, Reporting Appointment and Separation of a Licensee).1 Stacks petitioned

to correct the report to reflect an honorable or general discharge. An administrative law judge (ALJ)

issued an order denying his petition, and the trial court affirmed the order. For the reasons that

follow, we will likewise affirm.




       1
           We cite to the current version of the relevant statutes and regulations.
                                         BACKGROUND

               Whenever a law enforcement officer leaves employment for any reason, the chief of

the employing agency or their designee must submit a report to the Commission regarding the

separation. Tex. Occ. Code § 1701.452(a). The report must include “a statement on whether the

license holder was honorably discharged, generally discharged, or dishonorably discharged.”

Id. § 1701.452(b). BCSO’s report on Stacks reflected that he received a dishonorable discharge,

which occurs when an officer is terminated “in relation to allegations of criminal misconduct” or “for

insubordination or untruthfulness.” Id. § 1701.452(b)(3).

               Stacks filed a petition with the executive director of the Commission to correct the

report to reflect an honorable or general discharge. See id. § 1701.4525(a); 37 Tex. Admin.

Code § 217.8(a) (2018) (Texas Comm’n on Law Enf’t, Contesting an Employment Termination

Report). A general discharge means that the officer’s termination was “related to a disciplinary

investigation of conduct that is not included in the definition of dishonorably discharged” or for a

documented performance problem. Tex. Occ. Code § 1701.452(b)(2). On the other hand, an

honorable discharge occurs when the officer leaves employment “while in good standing and

not because of pending or final disciplinary actions or a documented performance problem.”

Id. § 1701.452(b)(1).

               The executive director referred Stacks’ petition to the State Office of Administrative

Hearings for a contested-case proceeding. See id. § 1701.4525(a), (d); 37 Tex. Admin. Code

§ 217.8(c), (d).   At this hearing, BCSO bore the burden to establish by a preponderance




                                                  2
of the evidence that “the alleged misconduct occurred.”2 See Tex. Occ. Code § 1701.4525(e);

37 Tex. Admin. Code § 217.8(d).

              BCSO argued that a dishonorable discharge was appropriate because Stacks was fired

for untruthfulness. More specifically, BCSO alleged that Stacks omitted crucial details from an

offense report and probable cause affidavit describing his arrest of Chance Paul Tendick3 that

rendered both documents misleading. The relevant part of the affidavit reads:


              I, STACKS, PATRICK, hereby swear that: on the 06/21/2013 the
              defendant TENDRICK, CHANCE PAUL did commit the offense of
              POSS CS PG 1 < IG.

              This belief is based upon the following information: The Affiant
              observed a gold 2005 Chevrolet Trail Blazer, Texas Temporary Tag
              #7419310, traveling in the east bound in the 7200 block of FM 1431
              W. The vehicle did not have a working license plate light. The
              Affiant conducted a traffic stop of the vehicle in the 7000 block of
              FM 1431 W. The Affiant made contact with the vehicle’s occupants
              and observed the front seat passenger, who verbally identified himself
              as Chance Paul Tendick 8/29/1987 W/M, holding a clear glass pipe
              in his lap. From the Affiant’s law enforcement experience and
              training the Affiant recognized the pipe to be used to smoke illegal
              narcotics. The Affiant then conducted a search of Tendick’s person
              and the contents of his pockets. Tendick had a red Altoids mint tin in
              his right front shorts pocket. Inside the tin was two clear plastic bags
              containing a crystal substance consistent with methamphetamine.
              The total weight of the methamphetamine was less than one gram.




       2
        The Commission “is not considered a party in a proceeding conducted by the State Office
of Administrative Hearings under this section.” Tex. Occ. Code § 1701.4525(g).
       3
        The record contains differing spellings of Tendick’s last name. We use the spelling
employed by the ALJ’s decision and order for consistency.

                                                 3
Stacks added in the offense report that Officer Jesus Canchola of the Granite Shoals Police

Department was present and assisted him.

               Both the report and the affidavit omit the role played by a confidential informant (the

CI). Investigator Andrew White, the BCSO officer who usually worked with the CI, testified that

the informant called him after the stop to inform White that he was present and that Stacks and

Canchola “want[ed] him to do something that he thought was not correct.” Following an internal

investigation, Stacks submitted a written statement explaining all the circumstances surrounding

the stop:4


               On Thursday, June 20th, June 2013, I was meeting with Granite
               Shoals PD Officer Canchola #606 when he advised that he was going
               to meet with a confidential informant. A short while later I observed
               a gold Chevrolet Trail Blazer pull into the Jet Stop Convenient store.
               A white male exited the vehicle and was standing next to the vehicle.
               Officer Canchola stated that was his confidential informant and said
               he was going to speak with him. I then left the area until I received
               another phone call from Officer Canchola approximately half an hour
               later. Officer Canchola asked if I could return to the Jet Stop
               convenient store and meet with him. I arrived and met with Officer
               Canchola. I observed the gold Chevrolet Trail Blazer still parked in
               front of the store and the white male standing at the rear of the vehicle
               with the rear cargo door open. Officer Canchola advised me that his
               informant had told him about a person that was carrying several bags
               of methamphetamine. Officer Canchola then introduced me to the
               Informant who verbally identified himself as [the CI]. [The CI] then
               told Canchola he did not want to be at the store. Officer Canchola




        4
          The statement is preceded by a “Garrity Warning” in which Stacks declares that Sergeant
Gary Ferguson ordered him to give the statement “as a condition of my employment” and that Stacks
otherwise wished to retain his constitutional right to remain silent. See Garrity v. New Jersey,
385 U.S. 493, 500 (1967) (holding that incriminating statements obtained from police officers under
threat of removal from office are inadmissible in subsequent criminal proceedings).

                                                  4
               offered that he and [the CI] go to the Granite Shoals Police
               Department. Officer Canchola and [the CI] left the store at this point.

               A short time later, approximately 5 to 10 minutes, Officer Canchola
               called me again. Officer Canchola asked me to come over to the
               police department. I arrived and found the gold Trail Blazer and [the
               CI] parked around back. [The CI] was standing at the rear of the Trail
               Blazer. I saw Officer Canchola’s vehicle but he was not present. At
               this time I observed Officer Canchola exit the rear door of [the] police
               department. Officer Canchola handed [the CI] a screwdriver. [The
               CI] then began removing the license plate light cover of his vehicle.
               Once the cover was off [the CI] started trying to grab the light bulb.
               [The CI] asked if either I or Officer Canchola had something to grab
               hold of the bulb with. I said I had a pair of gloves and [the CI] asked
               if he could use them. I handed the gloves to [the CI] who then pulled
               the bulb out. [The CI] then returned the gloves to me. I then stepped
               away from the area to take a phone call. When I returned [the CI]
               handed Officer Canchola the screwdriver and Officer Canchola
               returned it to the police department. Officer Canchola began speaking
               to [the CI] but I could not hear what the conversation was about.
               [The CI] then said he was leaving to go see a girl and that he would
               call Canchola in a little while. Officer Canchola told me that he
               would get in touch with me later. I then left the area in one direction
               while [the CI] and Canchola went another.


Later that night or the following morning:


               Officer Canchola again called me and said that [the CI ] was going to
               be leaving shortly and that [the CI ] had told him that the subject
               carrying the narcotics would be in the front passenger seat of the Trail
               Blazer. Officer Canchola asked if I would meet him off Prairie Creek
               Road near Kingswood at the self storage buildings. I arrived and met
               with Officer Canchola. Officer Canchola asked if I would stay in the
               area and look for the vehicle while he waited further down Prairie
               Creek Road. After approximately 45 minutes Officer Canchola called
               and stated that he had spoken to [the CI] and the subject with the
               narcotics was sitting in the driveway with another male subject.
               Officer Canchola said that [the CI] was going to contact him when
               they left . . . . Approximately 10 to 15 minutes went by and Officer
               Canchola called and stated that the vehicle with the subject carrying

                                                  5
               the narcotics was leaving [the CI’s] residence. While on the phone
               with Officer Canchola, I observed the gold Trail Blazer pass by. The
               vehicle was traveling northbound towards FM 1431. The vehicle did
               not have a working license plate light. I pulled in behind the vehicle
               and informed Officer Canchola. Officer Canchola said he was trying
               to catch up with the vehicle and instructed me to stop the vehicle. I
               then activated my emergency overhead lights and affect[ed] a stop of
               the vehicle.


               Stacks did not dispute that he was terminated for omitting these details from his

offense report and affidavit but argued that the omissions did not amount to “untruthfulness.” Stacks

reasoned that even though further information might have assisted his superiors, the district attorney,

or the judge assigned to Tendick’s case, “every single word” in both documents were true. BCSO

responded that the omissions rendered both documents seriously misleading.5

               The ALJ issued a decision and order finding that Stacks omitted the informant’s

involvement from his offense report and affidavit as well as all the events that preceded the stop.

Based on these findings, the ALJ concluded that BCSO established that Stacks had been discharged

for untruthfulness and was not entitled to have the termination report changed.6 The trial court

affirmed the ALJ’s order. This appeal followed.




       5
         District Attorney Sonny McAfee testified that he declined to pursue charges against
Tendick after learning the full facts of the case.
       6
         BCSO had also argued that Stacks was dishonorably discharged because he was fired after
an investigation for perjury and fabrication of evidence. The ALJ expressly declined to decide
whether BCSO established that alternative ground, and it is not before us on appeal.

                                                  6
                                          DISCUSSION

               Stacks argues in a single issue on appeal that the omissions from the report and

affidavit do not amount to “untruthfulness.”


Standard of Review and Applicable Law

               We review the ALJ’s order under the substantial-evidence standard in the

Administrative Procedure Act. See Tex. Gov’t Code § 2001.174; City of Rice v. Texas Comm’n on

Law Enf’t Officer Standards & Educ., No. 03-11-00047-CV, 2013 WL 3186194, at *2 (Tex.

App.—Austin June 21, 2013, no pet.) (mem. op.). Under this standard, we must reverse and remand

a case for further proceedings “if substantial rights of the appellant have been prejudiced because

the administrative findings, inferences, conclusions, or decisions” are, among other things, “in

violation of a constitutional or statutory provision” or “affected by other error of law.” Tex. Gov’t

Code § 2001.174(2)(A), (D).

               Resolution of this appeal turns on the proper interpretation of Section 1701.452 of

the Occupations Code. Statutory interpretation presents a question of law that we review de novo

“even when we are reviewing agency decisions.” Cadena Comercial USA Corp. v. Texas Alcoholic

Beverage Comm’n, 518 S.W.3d 318, 325 (Tex. 2017). Our goal when construing a statute is to

determine and give effect to the legislature’s intent. Id. We rely on the plain meaning of the

statutory text as expressing that intent “unless a different meaning is supplied by legislative

definition or is apparent from the context, or the plain meaning leads to absurd results.” Fort Worth

Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018). To determine the plain meaning of

an undefined term, we typically begin with dictionary definitions “and then consider the term’s usage

                                                 7
in other statutes, court decisions, and similar authorities.” Texas State Bd. of Exam’rs of Marriage

& Family Therapists v. Texas Med. Ass’n, 511 S.W.3d 28, 35 (Tex. 2017).


Analysis

                The parties’ dispute centers on the meaning of the term “untruthfulness” in Section

1701.452. See Tex. Occ. Code § 1701.452(b)(3). We begin with the dictionary definition of the

term: “false” or “inaccurate.” Webster’s Third New Int’l Dictionary 2514 (2002); see Black’s Law

Dictionary (10th ed. 2014) (defining “untrue” as “not correct; inaccurate”). The common meaning

of “false” is “not corresponding to truth or reality: not true,” or “tending to mislead,” or “deceptive.”

Webster’s Third New Int’l Dictionary 819 (2002); see Smith v. State, 363 S.W.3d 761, 775 n.11

(Tex. App.—Austin 2012, pet. ref’d) (collecting dictionary definitions of “false”). Thus, the plain

meaning of the term “untruthfulness” extends to both outright falsehoods as well as misleading or

deceptive representations.

                BCSO argues that omitting facts can render an otherwise-true representation

misleading and cites to Franks v. Delaware, 438 U.S. 154 (1978) for support. The United States

Supreme Court held in Franks that a defendant may challenge a warrant by establishing that police

deliberately or recklessly included false statements in the sworn affidavit used to establish probable

cause. Id. at 155-56. If the defendant makes the requisite showing, and the remaining contents of

the affidavit do not establish probable cause, the warrant is void. Id. Franks addressed affirmative

statements, but BCSO points out that many courts have extended Franks to circumstances where

police deliberately or recklessly omitted a fact from the affidavit that would have eliminated

probable cause if it had been included. See United States v. Martin, 615 F.2d 318, 328 (5th Cir.

                                                   8
1980) (deciding that “allegations of material omissions were to be treated essentially similarly to

claims of material misstatements” for purposes of Franks); accord Gonzales v. State, 481 S.W.3d 300,

310-11 (Tex. App.—San Antonio 2015, no pet.); State v. Verde, 432 S.W.3d 475, 486 (Tex.

App.—Texarkana 2014, pet. ref’d); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—Houston [1st

Dist.] 2003, no pet.); Heitman v. State, 789 S.W.2d 607, 610-11 (Tex. App.—Dallas 1990, pet.

ref’d). These decisions recognize that an omission can deceive under certain circumstances.

E.g. Verde, 432 S.W.3d at 486 n.14 (observing generally that an omission can have “the same effect

as an intentional falsehood”).

                This Court has never decided whether Franks applies to omissions, and we do not

reach that question today because the validity of a warrant is not the question before us. Cf. Emack

v. State, 354 S.W.3d 828, 837-38 (Tex. App.—Austin 2011, no pet.) (assuming without deciding that

Franks applies to material omissions from warrant affidavit). In any event, these cases have limited

application here because the Franks definition of untruthfulness is specifically tailored to the context

of a magistrate’s determination of whether police demonstrated that probable cause exists to issue

a warrant. Information in an affidavit is truthful for that purpose if it “is believed or appropriately

accepted by the affiant as true.” Franks, 438 U.S. at 165. This standard specifically contemplates

that “truthful” facts may turn out to be false. See id. (holding that truthfulness requirement “does

not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct”).

Chapter 1701 of the Occupations Code does not supply a similar limitation on the meaning of




                                                    9
“untruthfulness.”7 See Rodriguez, 547 S.W.3d at 838. Moreover, the truthfulness of an officer’s

affidavit or offense report will arise outside of the context of a defendant’s challenge to probable

cause. To give one example, District Attorney Sonny McAfee testified that he personally reviewed

Stacks’ offense report and affidavit when deciding whether to bring charges against Tendick.

Because Section 1701.452 applies in many more situations than does Franks, we take our sister

courts’ discussion of the deceptive effect of omissions in the Franks context as instructive but

not definitive.8

                   The law recognizes the misleading effect of omissions in many other contexts. For

example, a publication “can convey a false and defamatory meaning by omitting or juxtaposing facts,

even though all the [publication’s] individual statements considered in isolation were literally true.”

Neely v. Wilson, 418 S.W.3d 52, 64 (Tex. 2013) (quoting Turner v. KTRK Television, Inc.,

38 S.W.3d 103, 114 (Tex. 2000)). For the same reason, fraud by nondisclosure is a subcategory of

fraud because a failure to disclose a fact “may be as misleading as a positive misrepresentation of

facts.” Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). The Legislature

stated the concept most explicitly in its prohibition on offering to sell a security through either a false

statement or “an omission to state a material fact necessary in order to make the statements made,

in the light of the circumstances under which they are made, not misleading.” Tex. Rev. Civ. Stat.

art. 581-33(A)(2). In other words, an omission can mislead by “substantially altering the information

        7
          The Commission has statutory authority to “further specify the circumstances that
constitute honorably discharged, dishonorably discharged, and generally discharged” by
administrative rule, but it has not exercised that authority. See Tex. Occ. Code § 1701.452(c).
        8
          We stress that our analysis has no bearing on how this Court will analyze Franks issues in
future cases.

                                                    10
available.” See Beebe v. Compaq Comput. Corp., 940 S.W.2d 304, 306 (Tex. App.—Houston [14th

Dist.] 1997, no writ); see also Tex. Bus. & Com. Code § 17.46(b)(24) (stating that it is a “false,

misleading, or deceptive” act to fail “to disclose information concerning goods or services” if the

consumer would not have entered the transaction if the information had been disclosed). These

authorities all support the concept that an omission can render a statement untruthful. Cf. Dallas

Morning News, Inc. v. Tatum, 554 S.W.3d 614, 627 (Tex. 2018) (stating that a publication is

untruthful by implication if it “gets the details right but does not put them in the proper context”

(quoting Turner, 38 S.W.3d at 115)).

               Applying its common meaning, a discharge for untruthfulness includes a discharge

for omitting material information or facts that rendered a statement misleading or deceptive. Stacks

objects that such interpretation means that an officer can be terminated for untruthfulness—and face

a dishonorable discharge—whenever he omits a detail from a report or statement even if he had no

reason to know that a superior officer would later consider the fact important. We do not agree that

such a result flows from the outcome of this case. Each administrative appeal of an employment

termination report necessarily turns on its own facts, and the employing agency bears the burden of

proof. The undisputed omissions made by Stacks, as indicated by the record before us, are

significant and material to the degree that they render his affidavit and report, in the context of the

specific offense reported, untruthful.

               Further, Section 1701.452 does not itself empower a law-enforcement agency to

terminate an officer. Rather, it spells out the reasons for termination that qualify as an honorable,

general, or dishonorable discharge. See generally Tex. Occ. Code § 1701.452. We are sympathetic



                                                  11
to the fact that a less-than-honorable discharge can have dire consequences for an officer’s career.

See Colorado Cty. v. Staff, 510 S.W.3d 435, 446 n.42 (Tex. 2017). A law enforcement agency may

not hire a licensed law enforcement officer without requesting the officer’s employment-termination

reports from the Commission. See Tex. Occ. Code § 1701.451(a). And a second dishonorable

discharge will result in the Commission suspending the officer’s license. See generally id.

§ 1701.4521 (“License Suspension for Officer Dishonorably Discharged”). Nevertheless, the

legislature chose to specify “untruthfulness” as grounds for a dishonorable discharge, and we must

apply the statute as written. See Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654

(Tex. 2013) (“We must take the Legislature at its word, respect its policy choices, and resist revising

a statute under the guise of interpreting it.”).

                Stacks also raises a practical objection, that including material omissions within the

definition of untruthfulness will endanger confidential informants. Stacks asserts that such a holding

will result in police officers erring on the side of disclosing confidential informants in their reports,

thus increasing the risk that defendants will learn their identity in discovery. This argument is

unpersuasive because the State of Texas has the privilege “to withhold from disclosure the identity

of individuals who provide the government with information regarding violations of law to officers

charged with enforcement of that law.” City of Carrollton v. Paxton, 490 S.W.3d 187, 204 (Tex.

App.—Austin 2016, pet. denied); see Tex. R. Evid. 508. Nothing in our holding today affects that

privilege. Further, the identity of the confidential informant in this case is irrelevant to the analysis

of whether the affidavit and report, taken as a whole, were untruthful.




                                                   12
               We hold that a discharge for “untruthfulness” within the meaning of Section

1701.452(b)(3) includes a discharge for material omissions. Consequently, the trial court did not err

in affirming the ALJ’s order that Stacks was not entitled to have the termination report changed. We

overrule Stacks’ sole issue.


                                         CONCLUSION

               We affirm the trial court’s order.



                                              _________________________________________
                                              Cindy Olson Bourland, Justice

Before Justices Puryear, Bourland, and Toth

Affirmed

Filed: December 12, 2018




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