Opinion issued August 18, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-14-00323-CV
                          ———————————
                          MARC STAFF, Appellant
                                      V.
COLORADO COUNTY, TEXAS SHERIFF R.H. "CURLY" WIED, IN HIS
      OFFICIAL AND INDIVIDUAL CAPACITY, Appellee



                 On Appeal from the 2nd 25th District Court
                         Colorado County, Texas
                       Trial Court Case No. 23,211



                                 OPINION

      Appellant, Marc Staff, a former Colorado County Sheriff’s Deputy, brought

a declaratory judgment action against Colorado County Sheriff R.H. “Curly” Wied
after he was terminated from his position as a peace officer.           Staff sought

declaratory relief, injunctive relief, and attorney’s fees. Both Staff and Sheriff

Wied moved for summary judgment, and the trial court granted Wied’s summary

judgment motion and denied Staff’s motion. The trial court entered final judgment

in favor of Sheriff Wied for $10,483.07 in reasonable attorney’s fees and $40,000

in conditional appellate attorney’s fees. In two issues, Staff contends that the trial

court erred in granting Wied’s motion for summary judgment and in failing to

properly interpret and apply Government Code sections 614.022 and 614.023.

      We reverse and remand.

                                    Background

      Staff joined the Colorado County Sheriff’s Department as a deputy sheriff in

October 2005. In April 2010, Lieutenant Troy Neisner began an investigation of

Staff, and he ultimately informed Staff, on April 28, 2010, that the Sheriff’s

Department was terminating his employment. Staff filed an administrative appeal

with Sheriff Wied, seeking reinstatement. Sheriff Wied denied the appeal and

upheld Staff’s termination.

      Staff subsequently filed a declaratory judgment action in the district court,

seeking a declaration that Colorado County and Sheriff Wied had violated

Government Code section 614.022, which requires complaints against peace

officers to be in writing and signed by the person making the complaint, and



                                          2
section 614.023, which requires a copy of the complaint to be provided to the

officer.1   Staff sought declaratory relief, all available monetary relief, and

injunctive relief.2

       Staff moved for partial summary judgment on his own claims. In this

motion, Staff alleged that Lieutenant Neisner received a complaint about Staff

from Colorado County Attorney Ken Sparks and “conducted an ex parte

investigation” of Staff without providing Staff a copy of the complaint or allowing

Staff the opportunity to respond to the allegations in the complaint. He further

alleged that he appealed his termination to Sheriff Wied, who denied the appeal

“without giving any type of reasoning or explanation as to his decision.” Staff

argued that the “Performance Deficiency Notice” that Lieutenant Neisner provided

to him at the time of his termination did not meet the requirements of Government

Code section 614.022 because it did not qualify as a “written and signed

complaint” against Staff. Moreover, Lieutenant Neisner did not provide Staff with

a copy of the allegations against him until Staff received the Performance


1
       See TEX. GOV’T CODE ANN. §§ 614.022–.023 (Vernon 2012).
2
       Staff requested the following injunctive relief: (1) “That Defendant be enjoined
       from withholding written complaints made against peace officers”; (2) “[T]hat
       Defendant institute policies to insure that the Colorado County Sheriff’s
       Department not discharge or discipline current or former employees in violation of
       the Texas Government Code”; and (3) “[T]hat Colorado County, Texas implement
       procedures to protect its current, past and future employees from subjective and
       overreaching claims.”

                                           3
Deficiency Notice at the time of his termination, and, therefore, he did not receive

the opportunity to defend himself against the allegations. Staff argued that he had

established that Sheriff Wied had violated the Government Code as a matter of law

and that summary judgment on his declaratory judgment claims was proper.

      As summary judgment evidence, Staff attached a letter from Sheriff Wied to

Staff’s counsel dated May 12, 2010, after Staff’s termination but before he had

filed an administrative appeal. In the letter, Sheriff Wied stated that Colorado

County is an “at will” employer, but that Staff could file a written appeal of the

termination decision with Wied and Wied would consider whether to uphold the

termination. Staff also attached a copy of his written appeal of the termination

decision to Sheriff Wied, in which he argued that, contrary to the Government

Code, “it doesn’t appear that there was ever a signed, written complaint by the

person who was the subject of the alleged mistreatment” and that, Colorado

County’s status as an “at will” employer notwithstanding, Staff was entitled to

notice of the complaint and an opportunity to respond prior to having his

employment terminated.

      Staff also attached the Performance Deficiency Notice that he received from

Lieutenant Neisner on April 28, 2010. This notice stated:

      You (Marc Staff) previously signed an acknowledgement indicating
      that you received a copy of the Colorado County Personnel Manual
      and your understanding that it was your responsibility to read the
      manual and to abide by the provisions in said manual. As specified in

                                         4
      the Colorado County Personnel Manual on page 4, Colorado County
      is an At-Will employer. The following specified grounds for
      termination are not all-inclusive since the Colorado County Sheriff’s
      Office maintains the right to terminate employment for any legal
      reason or no reason at all. The following is merely written
      documentation of recent deficiencies in your performance and is not a
      complete record, nor should it be considered an exhaustive list of the
      reasons for your termination.

The Performance Deficiency Notice recited that Colorado County Attorney Ken

Sparks contacted Sheriff Wied on April 26, 2010, provided him with a DVD

recording of a traffic stop in which Staff had participated, and expressed his

concern that Staff’s behavior during the traffic stop was inappropriate.

      Lieutenant Neisner reviewed the recording and determined that Staff had

engaged in “unacceptable and unprofessional” behavior, including taunting the

subject of the traffic stop and repeatedly screaming at the subject “in an apparent

rage” to provide his license and insurance. Lieutenant Neisner and another deputy

then performed a “spot check” of other recordings of traffic stops captured by

Staff’s in-car video system and discovered at least one additional incident in which

Staff had behaved in an “unacceptable and grossly unprofessional” manner during

a traffic stop. Lieutenant Neisner recommended “immediate termination,” and the

notice contained the following statement:

      Effective Immediately:
      Your employment with Colorado County Sheriff’s Department is
      terminated and your services are no longer needed. If you wish to
      appeal the above decision, you must do so in writing within 30 days to



                                          5
      the Sheriff. The Sheriff will make a decision on whether or not to
      uphold the above decision. The Sheriff’s decision will be final.

      Sheriff Wied also moved for partial summary judgment on Staff’s

declaratory judgment claims. Sheriff Wied argued that sheriffs have “virtually

unbridled authority in hiring and firing their employees” and that Staff, as a deputy

sheriff, served at the pleasure of the sheriff and could be terminated for any reason

or no reason. He further argued that Colorado County was an at-will employer,

that it retained the right to “terminate any employee at any time, with or without

any condition, benefit, policy, or privilege of employment at any time, with or

without notice,” and that, when he accepted his employment, Staff signed an

acknowledgement of this policy.

      Sheriff Wied also argued that Government Code sections 614.022 and

614.023 did not apply to Staff because Staff’s termination “was not based on a

specific complaint nor does any part of the termination or statutory provisions

change the status of ‘at-will’ employment.” Alternatively, Sheriff Wied argued

that, if sections 614.022 and 614.023 did apply, he had complied with those

provisions because Staff received a copy of the Performance Deficiency Notice,

which qualified as a “written signed complaint,” Wied was the one who made the

final decision concerning Staff’s employment, the Sheriff’s Department

investigated the allegations brought to its attention by Sparks, and evidence existed

to support the allegations of misconduct.

                                            6
      Sheriff Wied attached as summary judgment evidence an excerpt from the

Colorado County Personnel Manual which stated:

      Colorado County is an employment at-will employer. No contract,
      either expressed or implied, exists between the County and any
      employee for any duration. The County also retains the right to
      terminate any employee at any time, with or without notice, for any
      legal reason or no reason. The County also retains the right to change
      any condition, benefit, policy, or privilege of employment at any time,
      with or without notice. The employee also has the right to sever the
      relationship at any time, with or without notice.

Sheriff Wied also attached a signed acknowledgement by Staff that he had

received a copy of the Colorado County Personnel Manual and that he understood

that his “employment is terminable at will so that both the county and its

employees remain free to [choose] to end their relationship at any time for any

reason or no reason.” Sheriff Wied also attached as summary judgment evidence

the Performance Deficiency Notice and a copy of his June 3, 2010 letter to Staff’s

attorney upholding the termination.

      The trial court granted Sheriff Wied’s motion for summary judgment and

denied Staff’s motion. The trial court entered final judgment in favor of Sheriff

Wied for $10,483.07, representing his reasonable and necessary trial-level

attorney’s fees and $40,000 in conditional appellate attorney’s fees. This appeal

followed.




                                        7
                               Summary Judgment

      In his first issue, Staff contends that the trial court erred in rendering

summary judgment in favor of Sheriff Wied. In his second issue, he contends that

the trial court erred by failing to properly interpret and apply Government Code

sections 614.022 and 614.023. We consider these issues together.

      A. Standard of Review

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, we review both parties’ summary judgment

evidence and determine all questions presented. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005); FM Props. Operating Co. v. City of Austin, 22

S.W.3d 868, 872 (Tex. 2000). Each party bears the burden of establishing that he

is entitled to judgment as a matter of law. City of Santa Fe v. Boudreaux, 256

S.W.3d 819, 822 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also TEX. R.

CIV. P. 166a(c) (“The judgment sought shall be rendered forthwith if . . . there is no

genuine issue as to any material fact and the moving party is entitled to judgment

as a matter of law on the issues expressly set out in the motion or in an answer or

any other response.”). If we determine that the trial court erred, we render the

judgment that the trial court should have rendered. Dorsett, 164 S.W.3d at 661;

FM Props., 22 S.W.3d at 872. If the trial court’s order does not specify the

grounds for its summary judgment ruling, we affirm the summary judgment if any



                                          8
of the theories presented to the trial court and preserved for appellate review are

meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003).

      When we construe statutes, as we must in this case, the primary rule of

statutory interpretation is that we must ascertain and give effect to the intent of the

Legislature. Harris Cnty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105

S.W.3d 88, 97 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (citing Cont’l

Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000)).

We must consider the plain language of the statute, and we may consider the

legislative history and the consequences from alternative constructions. Id. (citing

Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000) and TEX. GOV’T

CODE ANN. § 311.023).

      Under the Uniform Declaratory Judgments Act, a person whose rights,

status, or other legal relations are affected by a statute may have a court determine

any question of construction or validity arising under the statute and may obtain a

declaration of his rights under the statute. TEX. CIV. PRAC. & REM. CODE ANN.

§ 37.004(a) (Vernon 2015); Guthery v. Taylor, 112 S.W.3d 715, 720 (Tex. App.—

Houston [14th Dist.] 2003, no pet.). We review declaratory judgments under the

same standards used for other judgments and decrees and look to the procedure

used to resolve the issue at trial to determine the appropriate appellate standard of



                                          9
review. Guthery, 112 S.W.3d at 720; see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 37.010 (Vernon 2015) (“All orders, judgments, and decrees under this chapter

may be reviewed as other orders, judgments, and decrees.”). Because, in this case,

the trial court resolved the case on competing summary judgment motions, we

review the propriety of the trial court’s denial of the declaratory judgment under

the same standards we apply to the summary judgment. Guthery, 112 S.W.3d at

720.

       B. Government Code Sections 614.022 and 614.023

       Government Code Chapter 614, Subchapter B—entitled “Complaint Against

Law Enforcement Officer or Fire Fighter”—addresses a narrow category of

circumstances in which a complaint of misconduct is made against a peace officer

or fire fighter, and it requires a specified procedure to be followed before the peace

officer or fire fighter may be terminated. See TEX. GOV’T CODE ANN. § 614.022

(Vernon 2012) (requiring, for complaint to be considered by head of local law

enforcement agency, that complaint be in writing and signed by person making

complaint); id. § 614.023 (Vernon 2012) (providing that disciplinary action may

not be taken against officer unless signed copy of complaint is given to officer

within reasonable time after complaint is filed).         Subchapter B applies to

complaints made against a peace officer as defined by Code of Criminal Procedure

article 2.12 or pursuant to “other law [and] who is appointed or employed by a



                                         10
political subdivision of this state.” 3 TEX. GOV’T CODE ANN. § 614.021(a)(1), (3)

(Vernon 2012).

      Government Code section 614.022 provides that for a complaint against a

peace officer “[t]o be considered by the head of a . . . local law enforcement

agency, the complaint must be: (1) in writing; and (2) signed by the person making

the complaint.” Id. § 614.022.

      Section 614.023 then provides:

      (a)   A copy of a signed complaint against a . . . peace officer
            appointed or employed by a political subdivision of this state
            shall be given to the officer or employee within a reasonable
            time after the complaint is filed.
      (b)   Disciplinary action may not be taken against the officer or
            employee unless a copy of the signed complaint is given to the
            officer or employee.
      (c)   In addition to the requirement of Subsection (b), the officer or
            employee may not be indefinitely suspended or terminated from
            employment based on the subject matter of the complaint
            unless:
                   (1)    the complaint is investigated; and
                   (2)    there is evidence to prove the allegation of
                          misconduct.


3
      Subchapter B does not apply to peace officers “appointed or employed by a
      political subdivision that is covered by a meet and confer or collective bargaining
      agreement under Chapter 143 or 174, Local Government Code, if that agreement
      includes provisions relating to the investigation of, and disciplinary action
      resulting from, a complaint against a peace officer . . . .” TEX. GOV’T CODE ANN.
      § 614.021(b) (Vernon 2012). Here, neither party asserts that Colorado County is
      covered by a meet and confer or collective bargaining agreement under Local
      Government Code Chapters 143 or 174.

                                          11
Id. § 614.023.

      These statutes provide “covered employees with procedural safeguards to

reduce the risk that adverse employment actions would be based on

unsubstantiated complaints.” Turner v. Perry, 278 S.W.3d 806, 823 (Tex. App.—

Houston [14th Dist.] 2009, pet. denied). In enacting these statutes, the Legislature

“determined that the value of these protections outweighs the fiscal and

administrative burdens incurred by complying with statutory requirements.” Id.

             1. Applicability of sections 614.022 and 614.023

      In contending that the trial court properly rendered summary judgment in his

favor, Sheriff Wied first argues that Government Code sections 614.022 and

614.023 are not applicable in this case because Colorado County is an “at-will”

employer, and, as a deputy sheriff, Staff had no legal entitlement to his continued

employment and could be terminated for any reason or no reason and without any

notice.

      The general rule in Texas is that, absent a specific agreement to the contrary,

“employment may be terminated by the employer or the employee at will, for good

cause, bad cause, or no cause at all” and that this rule applies by statute to deputy

sheriffs. Cnty. of Dallas v. Wiland, 216 S.W.3d 344, 347 (Tex. 2007) (quoting

Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998), and

TEX. LOC. GOV’T CODE ANN. § 85.003(c) (Vernon 2008) (“A deputy serves at the



                                         12
pleasure of the sheriff.”)). “Texas law provides ‘sheriffs, and other elected county

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

Renken v. Harris Cnty., 808 S.W.2d 222, 225 (Tex. App.—Houston [14th Dist.]

1991, no writ) (quoting Irby v. Sullivan, 737 F.2d 1418, 1421 (5th Cir. 1984)).

“Deputy sheriffs have no legal entitlement to their jobs as public employees; the

sheriff may fire them for many reasons or for no articulate reason at all. . . . More

importantly, nothing in the Harris County grievance policy purports to limit the

authority of elected officials like Constable Moore to discharge any employee.”

Id. (quoting Barrett v. Thomas, 649 F.2d 1193, 1199 (5th Cir. 1981)).

      However, either the State or the employer may implement policies and

procedures for resolving complaints and grievances without altering the

employee’s status as an at-will employee.       See id.   “The State may ‘require

procedures for reasons other than protection against deprivation of substantive

rights . . . .’” Id. (quoting Henderson v. Sotelo, 761 F.2d 1093, 1097 (5th Cir.

1985)).

      Government Code sections 614.022 and 614.023 do not limit the authority of

the Colorado County Sheriff to discharge an employee; instead, the statutes merely

require that, when a complaint of misconduct forms the basis of the decision to

terminate employment, the employee must receive a signed written copy of that

complaint before discipline may be imposed. See id. (“Thus, even if appellant had



                                         13
certain procedural rights, such as a right to a hearing, appellant might still be an

‘at-will’ employee.”).

      Thus, the fact that a county is an at-will employer does not preclude

application of sections 614.022 and 614.023 where a county employee has been

terminated because a complaint has been made against him or following an

investigation, as opposed to being terminated “at will” for no cause. See Treadway

v. Holder, 309 S.W.3d 780, 783 (Tex. App.—Austin 2010, pet. denied) (addressing

similar argument that Chapter 614, Subchapter B does not apply because Comal

County is at-will employer and peace officers are at-will employees and holding,

“We need not address any effect Subchapter B might have on at-will employment

because it is undisputed that Treadway was terminated for cause. The issue, then,

is not whether she could have been terminated without cause, but whether the

cause for which she was terminated—lying to a supervisor and falsifying training

documents—resulted from a ‘complaint’ that triggers the requirements of

Subchapter B”).    We conclude that Colorado County’s status as an “at-will”

employer does not preclude application of Government Code sections 614.022 and

614.023.

      We therefore turn to whether the Colorado County Sheriff’s Department

complied with Subchapter B in this case.




                                        14
             2. Compliance with sections 614.022 and 614.023

      Staff argues that the trial court erred in granting summary judgment to

Sheriff Wied because the court failed to properly interpret and apply Government

Code sections 614.022 and 614.023, depriving him of statutory protections to

which he was entitled. Sheriff Wied responds that the sections are inapplicable to

this case by their terms.

      In Guthery v. Taylor, the Fourteenth Court of Appeals analyzed whether a

“Notice of Proposed Disciplinary Action,” provided to a police officer by his

superior officer after an investigation had occurred, constituted a “complaint”

under sections 614.022 and 614.023. 112 S.W.3d at 722–24. In Guthery, a citizen

telephoned the Sugar Land Police Department to complain that an officer had

damaged her front door. Id. at 718. After the police department determined that

Guthery was the only officer at the citizen’s house that night, the department

conducted an investigation, and ultimately concluded that Guthery had caused

damage to the citizen’s property. Id. Taylor, the police chief, reviewed the

investigation report and issued a signed “Notice of Proposed Disciplinary Action”

to Guthery, informing him that Taylor intended to suspend Guthery for three days

and requesting his presence at a meeting scheduled for six days later to respond to

the allegations. Id. After the meeting, Taylor approved the suspension. Id. at 719.




                                        15
      In determining whether the police department had violated sections 614.022

and 614.023 because Guthery never received a written complaint signed by the

affected citizen, our sister court first looked to Local Government Code section

143.123, which governs the investigation of fire fighters and police officers in

municipalities that have adopted civil service programs and which has a “similar

nature” and purpose to section 614.022. Id. at 722; see TEX. LOC. GOV’T CODE

ANN. § 143.123 (Vernon 2008). Section 143.123 provides:

      Before an investigator may interrogate a fire fighter or police officer
      who is the subject of an investigation, the investigator must inform the
      fire fighter or police officer in writing of the nature of the
      investigation and the name of each person who complained about the
      fire fighter or police officer concerning the matters under
      investigation. An investigator may not conduct an interrogation of a
      fire fighter or police officer based on a complaint by a complainant
      who is not a peace officer unless the complainant verifies the
      complaint in writing before a public officer who is authorized by law
      to take statements under oath.

TEX. LOC. GOV’T CODE ANN. § 143.123(f). The court noted that section 143.123

defines “complainant” as “a person claiming to be the victim of misconduct by a

fire fighter or police officer.” Guthery, 112 S.W.3d at 722 (quoting TEX. LOC.

GOV’T CODE ANN. § 143.123(a)(1)).        Section 143.123 also explicitly requires

complaints to be in writing and implicitly requires complaints to be signed, as

complaints made by complainants who are not peace officers must be verified. See

id.




                                        16
      Ultimately, the court concluded that a “complaint,” as used in sections

614.022 and 614.023, “must be signed and in writing to be the victim’s

complaint . . . .” Id. at 723; see also Turner, 278 S.W.3d at 822 (“[T]he complaint

must be in writing and signed by the person who claims to be the victim of

misconduct.”).    The “Notice of Proposed Disciplinary Action,” which was

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

complaint against Guthery, therefore did not qualify as a “complaint” under

sections 614.022 and 614.023 because it was not signed by the victim of the

alleged misconduct. Guthery, 112 S.W.3d at 723; Harris Cnty. Sheriff’s Civil

Serv. Comm’n v. Guthrie, 423 S.W.3d 523, 530 (Tex. App.—Houston [14th Dist.]

2014, pet. denied) (“[A] ‘signed complaint’ under 614.023 could only be a

complaint written and signed by a person claiming to be the victim of

misconduct.”). The court further held that, pursuant to section 614.023, the police

chief “had a clear duty to refrain from taking disciplinary action against Guthery

when the only ‘complaint’ offered to satisfy sections 614.022 and 614.023 was the

Chief’s ‘Notice of Proposed Disciplinary Action.’” Guthery, 112 S.W.3d at 724.

      In Treadway v. Holder, the Austin Court of Appeals considered a situation

in which the complaint against the peace officer, Treadway, originated from within

the Comal County Sheriff’s Office, instead of from a citizen. 309 S.W.3d at 781.

In that case, a lieutenant within the sheriff’s department received a complaint from



                                        17
a shift sergeant that Treadway was not meeting with a trainee officer as frequently

as she ought to have been. Id. The lieutenant investigated the complaint and

determined that Treadway fabricated reports. Id. The sheriff ordered Treadway’s

termination. Id. Treadway argued that she did not learn about the allegations

against her until after her discharge and that she never received a signed, written

complaint regarding the allegations. Id.

      The Austin court, as the Fourteenth court did in Guthery, also considered

Local Government Code section 143.123 in construing the definition of

“complaint” in sections 614.022 and 614.023. Id. at 783–84. The Austin court

noted that the language of section 143.123 suggested that “‘complaint’ includes

internal complaints by other officers” and that “the legislature did not intend the

term ‘complaint’ to be limited to external citizen complaints.” Id. at 784. The

court concluded that “a ‘complaint’ for purposes of [Government Code Chapter

614,] Subchapter B is any allegation of misconduct that could result in disciplinary

action.” Id. The court stated that it was immaterial that the allegations against

Treadway were made by her supervisor; instead, the relevant facts were that “there

were allegations of misconduct” and that “these allegations led to Treadway’s

termination.” Id. The plain language of section 614.023 requires a conclusion that

“any ‘allegation of misconduct’ for which disciplinary action may be imposed

represents a complaint, regardless of the source.” Id.



                                           18
        The Austin court reasoned that this interpretation of sections 614.022 and

614.023 served the statutory purpose of “protect[ing] peace officers from

disciplinary action based on unsubstantiated allegations of misconduct” and that,

by failing to provide a signed, written complaint to Treadway prior to her

termination, Treadway’s “‘ability to investigate or defend against the complaints

made against h[er]’ was impaired.” Id. at 785 (quoting Turner, 278 S.W.3d at

823).

        Here, it is undisputed that the investigation into Staff’s conduct during

traffic stops began when Colorado County Attorney Ken Sparks contacted the

Sheriff’s Department, provided the video recording of a traffic stop that Staff had

conducted, and expressed his concern that Staff’s behavior during the stop was

inappropriate. It is also undisputed that Sparks never wrote and signed a complaint

regarding his concerns over Staff’s behavior and that Staff, therefore, never

received such a complaint completed by Sparks setting out the allegations against

him. The only documentation that Staff received concerning the allegations was

the Performance Deficiency Notice, completed and signed by Lieutenant Neisner

on April 28, 2010. This document described Sparks’ contact with the Sheriff’s

Department and the ensuing investigation, and this document also contained

Lieutenant Neisner’s recommendation that Staff’s employment be terminated. The

last paragraph of the Performance Deficiency Notice stated:



                                        19
      Effective Immediately:
      Your employment with Colorado County Sheriff’s Department is
      terminated and your services are no longer needed. If you wish to
      appeal the above decision, you must do so in writing within 30 days to
      the Sheriff. The Sheriff will make a decision on whether or not to
      uphold the above decision. The Sheriff’s decision will be final.

      Sheriff Wied argues, “There is no statutory provision requiring a written

complaint when the prosecutorial integrity of a criminal case is discussed between

the prosecuting authority and the law enforcement agency that made the referral

for prosecution.” However, Government Code Chapter 614, Subchapter B does

not make any distinction between the types of complaints to which it applies. It

applies only to certain individuals, but the statutory language does not limit the

applicability to certain kinds of complaints. Compare TEX. GOV’T CODE ANN.

§ 614.021(a) (providing that subchapter applies only to complaints against law

enforcement officer of State of Texas, fire fighters employed by State or political

subdivision, peace officers appointed or employed by political subdivisions, and

detention officers or county jailers appointed or employed by political

subdivisions) with id. § 614.022 (providing that, “[t]o be considered by the head of

a . . . local law enforcement agency, the complaint must be: (1) in writing; and

(2) signed by the person making the complaint” and providing no limitation on

types of complaints to which statute applies).      As the Austin court held in

Treadway, the source of the allegations of the misconduct is immaterial; rather, “a



                                        20
‘complaint’ for purposes of Subchapter B is any allegation of misconduct that

could result in disciplinary action.” 309 S.W.3d at 784. We conclude that this

argument is without merit.

      Alternatively, Sheriff Wied contends that the Performance Deficiency

Notice constitutes a written, signed complaint that complies with Government

Code section 614.022.     However, the allegations of misconduct against Staff

originated from outside of the Colorado County Sheriff’s Department, specifically,

with the Colorado County Attorney, the “victim” of Staff’s misconduct. The

Colorado County Attorney did not sign the complaint. The Fourteenth court held

in Guthery, however, that section 614.022 requires that “the ‘complaint’ . . . must

be signed and in writing to be the victim’s complaint,” and an internally-generated

notice relating to a proposed disciplinary procedure does not qualify as the

statutorily-required complaint.   112 S.W.3d at 723.      Here, Sparks made the

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

allegations against him signed by Sparks. Instead, the only written notice of the

allegations that he received was the Performance Deficiency Notice, completed

and signed by Lieutenant Neisner, on the date of his termination.

      We also observe that, unlike the “Notice of Proposed Disciplinary Action”

in Guthery, which informed Guthery that Chief Taylor intend to suspend him for

three days and requested that he meet with Taylor several days later before the



                                        21
imposition of discipline, here, Lieutenant Neisner gave Staff the Performance

Deficiency Notice, informing him of the allegations and investigation against him,

on the same day the Sheriff’s Department terminated his employment. See 112

S.W.3d at 718.

      Finally, Sheriff Wied argues that the Performance Deficiency Notice was

merely a “recommendation” by Lieutenant Neisner and that the disciplinary action

did not occur until June 3, 2010, when Sheriff Wied denied Staff’s administrative

appeal of the termination decision.      We note, however, that the Performance

Deficiency Notice itself, while informing Staff of his right to appeal the decision to

Sheriff Wied, states that the termination of Staff’s employment is “effective

immediately.” This constitutes a disciplinary action that occurred before Staff

received a signed, written complaint of the allegations against him. See TEX.

GOV’T CODE ANN. § 614.023(b) (“Disciplinary action may not be taken against the

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

employee.”).

      We conclude that under both Guthery and Treadway, the Performance

Deficiency Notice Staff received did not constitute a “complaint” pursuant to

section 614.022, that Sheriff Wied failed to provide notice of the written complaint

signed by the victim of the alleged misconduct, and that the Performance

Deficiency Notice by which Staff’s employment was terminated “effective



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immediately” was a disciplinary action taken without a copy of the signed

complaint having been provided to Staff. Therefore, Sheriff Wied violated both

section 614.022 and section 614.023 when he terminated Staff’s employment

before Staff received a copy of a signed, written complaint by the victim of the

alleged misconduct.

      We note that this construction and application of sections 614.022 and

614.023 prevents the impairment of a peace officer’s ability to investigate or

defend against the complaints of misconduct made against him and protects peace

officers “from disciplinary action based on unsubstantiated allegations of

misconduct.” See Treadway, 309 S.W.3d at 785; Turner, 278 S.W.3d at 823;

Guthery, 112 S.W.3d at 723 n.11 (stating that allowing “Notice of Proposed

Disciplinary Action” completed by chief of police to suffice as statutorily-required

signed, written complaint “would result in an officer’s being disciplined based on

another officer’s hearsay characterization of a citizen’s complaint, as opposed to

the actual content of the complaint itself”).

      We therefore hold that the trial court erred in granting Sheriff Wied’s motion

for summary judgment and denying Staff’s motion for partial summary judgment.

      We sustain Staff’s first and second issues.




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      C. Attorney’s Fees

      Staff sought summary judgment only on the issue of whether Sheriff Wied

violated the Government Code but also pled, in his declaratory judgment action,

for attorney’s fees under the Uniform Declaratory Judgment Act. See TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009 (Vernon 2015) (“In any proceeding under this

chapter, the court may award costs and reasonable and necessary attorney’s fees as

are equitable and just.”). The trial court rendered judgment awarding Sheriff Wied

attorney’s fees, but the record contains no evidence of Staff’s attorney’s fees. We

may not, therefore, render judgment on Staff’s attorney’s fees, and we remand the

case to the trial court to determine whether an award of attorney’s fees to Staff is

“equitable and just.”

                                   Conclusion

      We reverse the judgment of the trial court and render judgment in favor of

Staff declaring that Sheriff Wied violated Government Code sections 614.022 and

614.023. We remand the case for the trial court to determine whether to award

Staff attorney’s fees.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

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