                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                      No. 07-14-00405-CV


    CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL CAPACITY
    AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW POLICE DEPARTMENT,
     AND KEN COUGHLIN, CAPACITY AS CHIEF OF POLICE OF THE CITY OF
               PLAINVIEW POLICE DEPARTMENT, APPELLANTS

                                               V.

                              KOREY FERGUSON, APPELLEE

                            On Appeal from the 64th District Court
                                    Hale County, Texas
           Trial Court No. A38274-1112, Honorable Robert W. Kinkaid Jr., Presiding

                                        June 23, 2016

                              MEMORANDUM OPINION
                    Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       This is a police disciplinary case from which the appellants (collectively “the City”)

challenge the trial court’s order directing that appellee, Korey Ferguson, be reinstated to

his position as police officer.1 We will affirm the order of the trial court.




       1
       Appellants are the City of Plainview, Texas, and individuals William Mull and
Ken Coughlin. Mull was Plainview’s police chief at the time Ferguson’s employment
                                     Background


       Ferguson was hired as a police officer by the Plainview Police Department in

September 2009. He was terminated on March 9, 2011, based on an investigation

stemming from a citizen’s complaint. On February 17, 2011, Ferguson, then on duty,

was called to the police station lobby to visit with Amber Washington, who had come to

the station to request assistance with a domestic matter.    According to Ferguson’s

report, Washington was angry, repeatedly cursed at him and was uncooperative. After

Washington refused to comply with Ferguson’s repeated requests to leave the station,

he arrested her for disorderly conduct. In making the arrest, Ferguson used “hand

control” and “took her to the ground” because Washington refused to put her hands

behind her back and pulled away. The confrontation was recorded on video. The next

day, Washington made a verbal complaint to the police department concerning

Ferguson’s treatment of her. Washington then made a written complaint.


       Approximately a week after Ferguson arrested Washington, Lieutenant Dion

Guerra asked Ferguson to provide a written memo about the arrest. Ferguson was not

informed of or given a copy of Washington’s written complaint. After an investigation,

the police department concluded sufficient evidence existed to support an allegation of

misconduct by Ferguson. Ferguson later testified he was not made aware of the on-

going investigation.




_________________
was terminated. Coughlin became police chief on Mull’s retirement, and was added as a
defendant shortly before trial.


                                           2
       Officers of the department met with Ferguson on March 3, March 9 and March

11. The court heard testimony that Ferguson was permitted to make a copy of

Washington’s complaint at the March 3 meeting. Ferguson testified he was not given a

copy of the written complaint at that meeting, and said the officers testifying otherwise

“are being untruthful.”


       As noted, Ferguson was terminated on March 9. The Texas Commission on Law

Enforcement Officer Standards and Education separation report and the City’s

personnel action form are dated that day. He was informed of his termination at a

meeting that day with Chief of Police Mull, Lieutenant Guerra, and police Captain

Derrick McPherson. Ferguson testified he saw the complaint at that meeting, “read it

and started kind of skimming through it[,]” but was not then given a copy.


       The court heard other conflicting testimony regarding Ferguson’s receipt of a

copy of the complaint at a March 11 meeting with Chief Mull and Captain McPherson.

Ferguson testified he was permitted to review a copy of the complaint at that meeting

but his request for a copy was denied.2 Ferguson told the court he did not actually




       2
         The record contains a March 21, 2011 letter to Ferguson’s attorney from the
City Attorney. In that letter, the City Attorney stated in part, “As for your concern about
the disciplinary action violating the Texas Government Code, Chapter 614, Subchapter
B, the Officer was given a copy of the complaint to review which he read, and he did
watch the recording of his arrest of the complainant. He asked if his attorney could get a
copy, and he was told that he could. At this time copies of both are being copied to
accompany your Open Records Request.”


                                            3
receive a copy of the written complaint until after his employment was terminated,

during a meeting on March 23.3


       After unsuccessfully appealing the termination decision to the City’s grievance

committee and then to the City manager, Ferguson filed suit, seeking issuance of a writ

of mandamus and a declaration that the City’s actions violated Government Code

sections 614.021, 614.022, and 614.023.          See TEX. GOV’T CODE ANN. §§ 614.021,

614.022, 614.023 (West 2014). The relief Ferguson sought included reinstatement to

his former position as police officer. After conducting a three-day trial, the court granted

Ferguson’s request for a writ of mandamus and a permanent injunction. The court

signed a judgment that included language ordering the defendants to withdraw

Ferguson’s 2011 termination and reinstate him to his position as a police officer “at the

rate of pay at the time of dismissal.” The court filed findings of fact and conclusions of

law and the City timely appealed the judgment.


                                         Analysis


       The City’s appeal is presented through four issues, contending: (1) the court

erred by determining reinstatement was mandatory for noncompliance with section

614.023; (2) the evidence adduced at trial was legally and factually insufficient to

support the remedy of reinstatement; (3) the court abused its discretion by ordering the

City to reinstate Ferguson; and (4) the remedy of reinstatement does not fit the

circumstances presented.



       3
           The March 23 meeting was the first step of the City’s personnel grievance
process.

                                             4
      Subchapter B of Texas Government Code Chapter 614 addresses the handling

of complaints against certain peace officers and firefighters. Section 614.022 requires

that, to be considered by the agency or department head, a complaint against an officer

must be in writing and signed by the person making the complaint. TEX. GOV’T CODE

ANN. § 614.022. Section 614.023 provides:


      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.


      “By enacting [Subchapter B], the State provided covered employees with

procedural safeguards to reduce the risk that adverse employment actions would be

based on unsubstantiated complaints.” Harris County Sheriff's Civil Serv. Comm'n v.

Guthrie, 423 S.W.3d 523, 529-530 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(internal citations omitted). Courts have recognized also that the failure of an agency

governed by the subchapter to provide proper documentation of the complaints against

an officer impairs the officer's ability to investigate or defend against the complaints.

See Treadway v. Holder, 309 S.W.3d 780, 785 (Tex. App.—Austin 2010, pet. denied);

Turner v. Perry, 278 S.W.3d 806, 823 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied). The State has determined that the value of these protections outweighs the

                                            5
fiscal and administrative burdens incurred by complying with their requirements. Turner,

278 S.W.3d at 823; see also Treadway, 309 S.W.3d at 784-85.


       The trial court’s findings of fact contain findings that Ferguson did not receive a

copy of Washington’s complaint within a reasonable time and that he did not receive a

copy at any time before the date of his termination on March 9. The City does not

challenge those findings on appeal.4 Resultantly, the City does not contest the trial

court’s conclusion its termination of Ferguson violated section 614.023, nor does it

contest his entitlement to some relief.5 Through its appellate issues, the City challenges

only the propriety of the trial court’s inclusion of reinstatement among the relief it

granted Ferguson.


       We begin our consideration of the City’s issues by noting that Texas courts have

treated reinstatement as an equitable remedy.           City of Fort Worth v. Jacobs, 382

S.W.3d 597, 599 (Tex. App.—Fort Worth 2012, pet. dism’d) (citing, inter alia, City of

Seagoville v. Lytle, 227 S.W.3d 401, 414 (Tex. App.—Dallas 2007, no pet.); City of Elsa

v. M.A.L., 226 S.W.3d 390, 391-92 (Tex. 2007)). Trial court rulings on the expediency,

necessity or propriety of grants of equitable relief are reviewed for abuse of discretion.

Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428-29 (Tex. 2008); see ERI

Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 873-75 (Tex. 2010) (describing

       4
         Under settled law, in a bench trial, the trial court, as fact-finder, is the sole judge
of the credibility of the witnesses. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.
1986). The court may take into consideration all the facts and surrounding
circumstances in connection with the testimony of each witness and accept or reject all
or any part of that testimony. Munters Corp. v. Swissco-Young Indus., Inc., 100 S.W.3d
292, 296-97 (Tex. App.—Houston [1st Dist.] 2002, pet. dism'd) (citations omitted).
       5
        Ferguson’s appellate brief concedes his relief cannot include recovery of lost
pay and benefits.

                                               6
courts’ exercise of discretion in fashioning equitable remedies for breach of fiduciary

duty).


         A trial court’s erroneous legal conclusion, even in an unsettled area of law, is an

abuse of discretion.     Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 624 (Tex.

2005); Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001). By its first issue, the City

contends the trial court misapprehended the law to require Ferguson’s reinstatement, as

a mandatory remedy for his termination in violation of section 614.023. The City’s

contention is based on a statement in the trial court’s findings of fact by which the court

said, “Non-compliance of the mandates in Texas Government Code 614.023(a) and (b)

require that the Plaintiff Korey Ferguson is entitled to the relief he requests to be re-

instated to his position as a police officer of the City of Plainview, Texas at the rate of

pay at the time of dismissal.” The City argues the statement is not a finding of fact but a

conclusion of law, and reads the statement to reflect a conclusion by the trial court that

reinstatement was mandatory following the court’s finding of a violation of section

614.023. Because, the City argues, reinstatement is not a mandatory remedy when

disciplinary action is taken contrary to the requirements of section 614.023, the trial

court committed an error of law, requiring reversal.


         We do not agree the court’s statement necessarily carries the meaning the City

ascribes to it. Where findings of fact are subject to more than one reasonable

construction, they should be given the meaning which will support the judgment.

Rodriguez v. Rodriguez, 860 S.W.2d 414, 418 (Tex. 1993) (citing De Llano v. Moran,

160 Tex. 490, 333 S.W.2d 359, 360 (1960)); see Gulf Liquid Fertilizer Co. v. Titus, 163

Tex. 260, 354 S.W.2d 378, 385 (1962) (if findings are susceptible of different


                                              7
constructions, they are construed, if possible, in harmony with the judgment and to

support it). The statement on which the City bases its argument, contained within the

court’s findings of fact, reasonably can be read as applying individually to Ferguson in

the context of the other facts of the case, rather than as stating a conclusion of law.

Rodriguez, 860 S.W.2d at 418. Accordingly, we are not required to read the trial court’s

finding as a legal conclusion, and thus have no need to address the City’s contention

the trial court erred in a conclusion the statute mandated Ferguson’s reinstatement.6


      We turn, then, to consideration of the City’s third and fourth issues, by which it

challenges Ferguson’s reinstatement as an abuse of discretion. A trial court abuses its

discretion if it rules unreasonably or arbitrarily, without reference to guiding rules or

principles. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A court also abuses its

discretion if it rules without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d

573, 578 (Tex. 2012) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)).


      The City asserts the trial court had before it no evidence supporting Ferguson’s

reinstatement. Rather, it contends, all of the evidence was to the contrary, showing

Ferguson was unfit and had a history of rule and policy violations within the police

department. The record shows Ferguson had been disciplined on several occasions.

The incidents were resolved through verbal reprimands and short suspensions. One

      6
          Accordingly, while we are conscious of the opinions of the Tyler and Austin
courts of appeals in City of Athens v. MacAvoy, 353 S.W.3d 905 (Tex. App.—Tyler
2011, pet. denied), and Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App.—Austin
2013, no pet.), we do not consider their potential application here. See MacAvoy, 353
S.W.3d at 910 (hearing examiner acting under chapter 143 of the Local Government
Code exceeded his jurisdiction by dismissing discipline against police officer because of
city’s violation of section 614.023); Bracey, 417 S.W.3d at 112 (analyzing and applying
holding of MacAvoy).


                                            8
infraction involved speeding with a civilian in Ferguson’s patrol car. The City also points

to the evidence of Ferguson’s misconduct in his interaction with Washington. It cites

Coughlin’s testimony expressing his opinions that Ferguson is “not suited to be a police

officer” and that reinstatement would provide him the “opportunity to abuse more

citizens.”   The City also argues evidence showed Ferguson’s reinstatement would

cause disruption in the police department, and would require the department to create a

position for him, effectively diminishing the department’s patrol force and thus

endangering the public.


       The City further argues that while Ferguson may not have actually received a

copy of Washington’s complaint before his termination, there is evidence he read it

before being terminated, and even Ferguson testified he was well aware of the reason

for his termination. It also points to the day-long post-termination hearing conducted

before the City’s grievance committee, and notes Ferguson was represented by counsel

throughout the post-termination proceedings. All these facts, the City contends,

demonstrate that the purpose of the statute was fulfilled in Ferguson’s case and the trial

court abused its discretion by ordering his reinstatement. Finally, the City argues the

court’s reinstatement order is contrary to the City’s charter provisions7 empowering the

City Manager to discipline employees when necessary, and its status as an at-will

employer.


       There is evidence, however, that the trial court could have seen as supporting

the remedy of reinstatement. The City was fully aware of the statutory requirement that

       7
       The City has not adopted the state civil service provisions in Chapter 143 of the
Local Government Code. See TEX. LOC. GOV’T CODE ANN § 143.002(a).


                                            9
a citizen’s complaint be provided to an officer within a reasonable time of its filing. The

requirement was referred to in the City’s manual containing general orders and

disciplinary procedures. And, as noted, the City does not challenge the court’s finding

Ferguson was not given a copy of the complaint before his termination.


      The trial court could have taken into consideration the evidence that Ferguson’s

decision to arrest Washington was not incorrect. Sergeant Kris Marble, a supervisor,

and Corporal Scott Young, an officer with more experience than Ferguson, approved

Washington’s arrest when Ferguson booked her into the jail. Chief Mull testified in his

deposition that while it might have been unnecessary, the force Ferguson used against

Washington was reasonable. Mull also testified that Ferguson “as a rule, has a good

attitude. And as a rule, he did a fairly good job.” Ferguson further points to the fact

Lieutenant Guerra, the investigating officer, initially prepared only a reprimand for

Ferguson.


      The trial court also could have considered evidence indicating the department’s

investigation into Washington’s complaint against Ferguson was incomplete. Guerra

acknowledged he failed to follow Department policy in handling the investigation of

Ferguson’s arrest of Washington, and admitted he should have, but did not, document

the steps he and other officers took during the investigation. Neither Young nor

Ferguson was interviewed.      Nor, during the investigation, was Ferguson shown the

video of the Washington arrest.


      Lastly, the court had before it the department’s written performance evaluation of

Ferguson, prepared in September 2010 on the anniversary of his hiring. Ferguson’s

marks on the evaluation are favorable, indicating he “meets standards” in all categories

                                            10
but one, “volume of acceptable work,” on which he received a mark indicating he

“exceeds standards.” He received a “step raise” in pay. The evaluation’s comments

section read:

             Officer Ferguson has been on day shift for approximately two
       months: He has become a productive member of the shift. His reports are
       done well and his citations and traffic enforcement has greatly improved.
       He does need to work on his time management so his work will be
       completed in a timely manner. His Officer safety is good and he readily
       accepts direction when needed. Officer Ferguson has had a trying few
       months lately on a personal level but has stayed professional and
       courteous.

             Officer Ferguson is proving himself to be an asset to the City and
       the Department. He should be advanced to the next step and retained in
       good standing.


       “A trial court does not abuse its discretion if it bases its decision on conflicting

evidence and some evidence supports its decision.” In re Barber, 982 S.W.2d 364, 365

(Tex. 1998).     The court heard conflicting evidence bearing on the propriety of

Ferguson’s reinstatement to his position as police officer. We are unable to conclude

the court’s order of reinstatement was an abuse of discretion. The City’s third and

fourth issues are overruled.


       Having reviewed the trial court’s imposition of the remedy of reinstatement under

the proper standard of review, we need not consider further the City’s issue two, which

asserts the legal and factual insufficiency of evidence supporting reinstatement.

Accordingly, we affirm the order of the trial court.



                                                   James T. Campbell
                                                       Justice




                                              11
