                                                                                   ACCEPTED
                                                                               01-15-00631-CV
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                         12/28/2015 3:27:40 AM
                                                                         CHRISTOPHER PRINE
                                                                                        CLERK

                       NO. 01-15-00631-CV
                 IN THE FIRST COURT OF APPEALS
                        HOUSTON, TEXAS                      FILED IN
                                                     1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                                                     12/28/2015 3:27:40 AM
                       PETER J. PASKE, JR.,          CHRISTOPHER A. PRINE
                                                              Clerk
                                                             APPELLANT,
                                V.


JOEL FITZGERALD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE
          CHIEF OF POLICE OF MISSOURI CITY, TEXAS AND
               THE CITY OF MISSOURI CITY, TEXAS,
                                                         APPELLEES.

                    APPELLANT’S REPLY BRIEF


                     Oral Argument Requested




                                         Margaret A. Harris
                                         State Bar No. 09081400
                                         margie@butlerharris.com
                                         Paul R. Harris
                                         State Bar No. 24059905
                                         paul@butlerharris.com
                                         Butler & Harris
                                         1007 Heights Boulevard
                                         Houston, Texas 77008
                                         (713) 526-5677
                                         Fax (888) 370-5038


                                         Attorneys for Peter J. Paske, Jr.
                        Identities of Parties and Counsel

Peter J. Paske, Jr., Appellant

Represented by:

Margaret A. Harris
State Bar No. 09081400
margie@butlerharris.com
Paul R. Harris
State Bar No. 24059905
paul@butlerharris.com
Butler & Harris
1007 Heights Boulevard
Houston, Texas 77008
(713) 526-5677
Fax (888) 370-5038

Joel Fitzgerald, Individually and in His official Capacity as the
Chief of Police of Missouri City, Texas and
the City of Missouri City, Texas, Appellees

Represented by:

WILLIAM S. HELFAND
State Bar No. 09388250
William.Helfand@chamberlainlaw.com
NORMAN RAY GILES
State Bar No. 24014084
Chamberlain Hrdlicka
1200 Smith Street, Suite 1400
Houston, Texas 77002
(713) 658-1818
Fax (713) 658-2553
Norman.Giles@chamberlainlaw.com




                                        2
                                           TABLE OF CONTENTS


Identities of Parties and Counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. Summary of Flaws in Appellees’ Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. The Statute’s Requirements
       and Appellees’ Inadequate Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
       A. The Complaint Was Not in Writing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
       B. Appellees Claim That They Complied with the Law
             But They Did Not. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
             1. The Pre-Termination Letter Does Not Comply With Chapter 614
                    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
             2. The 671 Pieces of Paper Do Not Comply With Chapter 614.. . . . 12
             3. The Letter Appellees’ Counsel Helped the City Manager Write
                    Months Later Does Not Comply with Chapter 614. . . . . . . . . 13
             4. In Violation of Chapter 614, Paske Had No Opportunity to Defend
                    Himself;
                    No Investigation That Might Have Challenged
                    Fitzgerald’s Hasty, Unilateral Decision. . . . . . . . . . . . . . . . . . 15

III. The Other, Equally Unsupported Defenses.. . . . . . . . . . . . . . . . . . . . . . . . . . .                  17
       A. The Clerk’s Record and Paske’s Claim
             Under the Declaratory Judgments Act. . . . . . . . . . . . . . . . . . . . . . . .                     17
       B. Sovereign Immunity is Unavailable
             For Claims Brought Under the Declaratory Judgments Act. . . . . . .                                    19
       C. A Post-Termination Finding by the Administrative Law Judge
             Is Not Binding on This Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              22

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26



                                                           3
                                             TABLE OF AUTHORITIES

Atchison v. Weingarten Realty Management Co., 916 S.W.2d 74 (Tex.
App.—Houston [1st Dist.] 1996, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App.-Austin, 2013, no pet). . . 23,
                                                                                24

Brown v. De La Cruz, 156 S.W.3d 560 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . 10

Castro v. McNabb, 319 S.W.3d 721 (Tex. App.-El Paso 2009, no pet.)
            .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990).. . . . . . . . . . . . . . . . . . . . 18

City of Athens v MacAvoy, 353 S.W.3d 905 (Tex. App. -Tyler 2011, pet. denied)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

City of DeSoto v White, 288 S.W.3d 389 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . 23

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). . . . . . . . . . . . . . . . 20, 21

City of Laporte v. Barfed, 898 S.W.2d 288 (Tex.1995). . . . . . . . . . . . . . . . . . . . . 10

City of Seagoville v. Lytle, 227 S.W.3d 401 (Tex. App.--Dallas 2007, no pet.). 19,
                                                                                20

Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547 (Tex. 2004). . . . . . . . . . . . . 18

Fiesta Mart, Inc. v. Hall, 886 S.W.2d 440 (Tex. App.—Houston [1st Dist.] 1994,
no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Flowers v. Flowers, 407 S.W.3d 452 (Tex. App.–Houston [14th Dist.] 2013).. . . 18

Graves v Mack, 246 S.W.3d 704 (Tex. App. --Houston [14th Dist] 2007, no pet.)

                                                                4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Guthery v. Taylor, 112 S.W.3d 715 (Tex. App.–Houston [14th Dist], 2003, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Harris City. Sheriff's Civil Serv. Common v. Guthrie, 423 S.W.3d 523 (Tex. App.-
Houston [14th Dist.] 2014, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Lang v. Texas Dept. of Public Safety, 2014 WL 3562738 (Tex. App.--Austin July
18, 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Mallios v. Standard Ins. Co., 237 S.W.3d 778 (Tex. App.—Houston [14th Dist.]
2007, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Nelson v City of Dallas, 278 S.W.3d 90 (Tex. App.–Dallas 2009, pet. denied). 23,
                                                                              24

Nichols v. Byrne, 1999 WL 58750 (Tex. App.—Corpus Christi 1999, no pet.). . 19

Nicholson v. Fifth Third Bank, 226 S.W.3d 581 (Tex. App.—Houston [1st Dist.]
2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Roob v. Von Beregshasy, 866 S.W.2d 765 (Tex .App.—Houston [1st Dist.] 1993,
reh’g of writ overruled).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Salley v. Houston Lighting and Power Co., 801 S.W.2d 230 (Tex. App.—Houston
[1st Dist.] 2007, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Staff v. Wied, 470 S.W.3d 251 (Tex. App.– Houston [1st Dist.] 2015).. . 8, 9, 13, 14

Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796 (Tex.1994). . . . . . . . . . . . . 24

Tamayo v. Lucio, 2013 WL 3770914 (Tex. App.-- Corpus Christi–Edinburg 2013,
no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex.1994). . . . . . . . . . 19, 20



                                                                 5
Treadway v. Holder, 309 S.W.3d 780, 784 (Tex. App.–Austin 2010, pet. denied)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16

Turnage v. JPI Multifamily, Inc., 64 S.W.3d 614 (Tex. App.–Houston [1st] 2001,
no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Turner v. Perry, 278 S.W.3d 806 (Tex. App.--Houston [14 Dist.], 2009, pet.
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21




                                                                6
       Appellees’ argument is contrary to well-settled Texas law. For that reason,

Appellant writes to show that Appellees’ attempt to sidestep the Legislature’s

mandate in Chapter 614 of the Government Code are without merit. He also shows

that the other arguments offered to defeat liability are similarly without merit.

           The question on appeal is whether, before firing this 15-year law

enforcement officer, Appellees failed to provide him the procedural due process

steps required under Texas law. This is a straightforward analysis. The statute can

hardly be more clear, and the only relevant facts are undisputed.

                  I. SUMMARY OF FLAWS IN APPELLEES’ ARGUMENT

           Simple questions call for simple answers. But as the answers do not favor

Appellees, they instead devote almost 50% of their brief setting forth a parade of

horribles they attribute to Paske.1 Like the great and powerful Oz, Appellees offer

little but a thin façade – a mask specially crafted to deceive the Court and hide the

true state of affairs. But, when the Court pulls back the curtain, it will discover

that, indeed, Appellees violated Chapter 614 of the Government Code. No amount



       1
         These accusations are irrelevant. And beyond that, they suffer from a number of
infirmities – some are downright false, others blatantly misrepresent the record, and others are
hotly disputed. As these allegations also appeared in Appellees’ Motion for Summary Judgment
below, R.70, Appellant addressed them in great detail in his Response to that motion. R.2250-57.

                                               7
of huffing and puffing can avoid or explain away the undeniable facts

demonstrating as a matter of law that summary judgment was improperly granted

in their favor, and that, instead Appellant is entitled to summary judgment.

      They also argue that the statute does not apply to the situation at hand or,

alternatively, that other untimely and irrelevant steps they undertook somehow

substituted for the procedural protections mandated by law. Those arguments were

most recently rejected in Staff v. Wied, 470 S.W.3d 251 (Tex. App.– Houston [1st

Dist.] 2015), just as they were in a host of earlier decisions.

      The arguments that do not rely on Chapter 614 are similarly unavailing.

There is no flaw in the pleadings, the doctrine of sovereign immunity is not

applicable, and an administrative decision on an unrelated matter is hardly res

judicata.

                      II. THE STATUTE’S REQUIREMENTS
                   AND APPELLEES’ INADEQUATE ARGUMENTS

      The Legislature requires that, before a law enforcement agency may fire an

officer for alleged misconduct, it must afford that officer the opportunity defend

himself and show that the proposed firing is not supported by the evidence. First,

the individual complaining of the alleged misconduct must reduce that complaint

to writing. Second, the agency must provide a copy of that document to the officer.



                                           8
And, third, the allegations in the complaint must be investigated

and shown to have merit. TEX. GOVT. CODE §§ 614.022, 023(c).

                      A. THE COMPLAINT WAS NOT IN WRITING

       Fitzgerald did not reduce his allegations of Paske’s misconduct to writing

before he fired him. See Appellant’s Brief at 4-6 (record references). Appellees do

not contend otherwise. Instead they argue that they are simply immune from

liability under the statute – an argument this Court explicitly rejected. Staff v.

Wied, 470 S.W.3d 251 (Tex. App.– Houston [1st Dist.] 2015).

       They argue that the law does not apply to them for two reasons. First, they

claim that, because the allegation was made by the Chief of Police (Fitzgerald), it

would be “unreasonable” to require that he spend any time committing his

accusations to writing.2 Second, they claim that, because the allegation originated

within the agency and not with a third party, no complaint was necessary. This

Court rejected both arguments in Staff, 470 S.W.3d at 261(“the source of the

allegations of the misconduct is immaterial; rather, “a ‘complaint’ for purposes of

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

action.”) (citing Treadway v. Holder, 309 S.W.3d 780, 784 (Tex. App.–Austin



       2
        The only authority they offer for the claim is the dissenting opinion in Treadway v.
Holder, 309 S.W.3d 780 (Tex.App.-Austin 2010, pet. denied) (Waldrop, J., dissenting).

                                                9
2010, pet. denied) (the law makes no exception for allegations of misconduct

originating with an officer’s supervisors)).3

       Appellees seek, in other words, to simply ignore this Court’s binding

precedent along with the plain language in Chapter 614. So long as there is a

reasonable construction that could give effect to the Legislature's pronouncement,

after all, any argument contradicting that construction would render statutory

language simply pointless. Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex.

2004) (citing City of Laporte v. Barfed, 898 S.W.2d 288, 292 (Tex.1995)).

           B. APPELLEES CLAIM THAT THEY COMPLIED WITH THE LAW
                             BUT THEY DID NOT

       Appellees claim that, even though they had no legal obligation to do so,

they provided Paske all the procedural protections set forth in Chapter 614. One

argument points to a letter he received two weeks before his termination that

criticized his reaction when he was told he was demoted. Another is that they gave

him 671 pieces of paper after he was fired – from which they withheld documents

pertaining to his termination. Finally, they claim that a letter Appellees’ counsel

helped write 4-1/2 months after Paske was fired sufficed was sufficient to meet


       3
         Additionally, Appellees misquote Graves v Mack, 246 S.W.3d 704 (Tex. App. -
-Houston [14th Dist] 2007, no pet.), leaving out the crucial fact that it involved a city in a
collective bargaining agreement with its police officers, which means that Chapter 614 does not
apply. Tex. Govt Code § 614.021(b). Missouri City had no such agreement with its officers.

                                               10
Chapter 614's requirements of mandatory pre-termination protections.

        1. The Pre-Termination Letter Does Not Comply With Chapter 614

      Appellees claim that a letter Paske received before the events Fitzgerald

says led to his termination shows that they followed Chapter 614. That claim is

wholly without merit. That letter alleges that Paske became “visibly tense,” his

“face became red,” he “tightened [his] body and fists and began shaking [his] legs.

[And he] began to stare off to the left while shaking [his] head” when told he was

demoted. R.711. But, according to what Fitzgerald reported to the City, he based

his decision to fire Paske on the fact that Paske did not report to the police

department within the one-hour he commanded on August 17, 2011 – not because

Fitzgerald found it somehow objectionable that Paske was “visibly tense.” R.2728.

      Appellees argue that their position is supported by Harris City. Sheriff's

Civil Serv. Common v. Guthrie, 423 S.W.3d 523 (Tex. App.-Houston [14th Dist.]

2014, pet. denied). There is no merit in this claim. The law enforcement officials

in Guthrie did everything that Appellees failed to do. At the time they provided

Guthrie a proposed termination letter, they also gave him documents collected

during an internal affairs investigation in which he had taken part, their

investigative report, a report from another law enforcement agency, and sworn

statements from several witnesses, including the person whose interactions with

                                          11
Guthrie “were at the heart of the allegation” and whose sworn statement provided

“considerable detail.” Id. at 531. Paske received nothing close to that.

            2. The 671 Pieces of Paper Do Not Comply With Chapter 614

       Appellees represent to the Court that Paske received 671 pieces of paper

detailing the “specific allegations made against him that supported termination of

his employment,” as well as “an investigative report conducted by Assistant Chief

of Police Keith Jamison.” Neither assertion is true. The record shows conclusively

that they successfully withheld documents about his termination when he made a

post-termination request under the Texas Public Information Act. [R.1731-38,

2221-35, 2973).

       These 671 pieces of paper are (1) the Texas Workforce Commission (TWC)

records on Paske’s claim for unemployment compensation benefits (R.1567-

1730); (2) correspondence about his request under the TIA as well as many letters

of commendation he received, his background check from 1996, and all the other

mundane documents found in personnel files (R.1731-2235); and (3) a few letters

from the Interim City Manager to Paske’s attorneys, which were all written after

Appellees decided that litigation was likely to result from their decision.4



       4
          Appellees also claim that these 671 pieces of paper included the various documents
listed in the December 31st letter. That is simply not true, as an examination of these pages show.

                                                12
      There is one two-page document among these 671 pieces of paper that was

written before Paske was fired – an hour or so before Paske received it. A notice

of termination hardly meets the mandate set out in Chapter 614 – as this Court

held in Staff. 470 S.W.3d at 261. Further, while Appellees represent that it

“details” the allegation, that is not true. It merely gives the number of a policy in

the City’s Personnel Policy and those of various policies in the police

department’s Code of Conduct. R.1712-1713. To no avail, Paske tried to get more

detailed information as soon as he was fired. The very next day, he wrote to

Fitzgerald and other City officials asking for a summary of each violation so that

he could respond to each in his appeal. R.2459. The Appellees never responded.

         3. The Letter Appellees’ Counsel Helped the City Manager Write
                 Months Later Does Not Comply with Chapter 614

      As to their next argument, this too was rejected by this Court in Staff. Here,

they represent to the Court that Paske was not fired until December 31, 2011, and

thus was afforded the pre-termination protections mandated by Chapter 614. This

claim is no more supported by the evidence than it was in Staff, where the Sheriff

made the same argument. In that case, the Sheriff argued that the Performance

Deficiency Notice Staff received on April 28, 2010, was merely a

“recommendation” of discipline – that Staff was not fired until June 3, 2010, when



                                          13
the Sheriff denied his administrative appeal of termination. This Court made short

shrift of that assertion, noting that it was plain on the face of the earlier document,

which recited that “the termination of Staff's employment is ‘effective

immediately.’” The same is true in this case.5 And here, as in Staff, the discipline

had already taken place before the second letter was written, a key fact in its

determination that the agency violated Chapter 614. 470 S.W.3d at 261.

       Second, there was no “independent” review. Appellees’ counsel played a

significant role in the creation of the document. When Paske sought discovery that

would show the origin of the assertions made in that document, Appellees refused,

claiming that it was protected by the attorney-client privilege. The federal district

court agreed, denying Paske any discovery into who wrote and/or contributed to

the various allegations set forth in the letter – because that information would

violate the attorney-client privilege. SR.281-282.




       5
          Fitzgerald’s letter of August 17, 2011, informed Paske that, “effective on the date of this
letter, your employment with the City of Missouri City Police Department ends.” R.709-710,
2929.

                                                 14
  4. In Violation of Chapter 614, Paske Had No Opportunity to Defend Himself;
                   No Investigation That Might Have Challenged
                       Fitzgerald’s Hasty, Unilateral Decision

      The telephone call in which Paske informed Fitzgerald that he could not

come to the police department as commanded occurred at approximately 11:37

a.m. R.361, 363, 2813-2814. Within two hours, Fitzgerald had already drafted a

letter to tell Paske that he was fired. R.2927. While Paske had suspected that

Fitzgerald would use this occasion as an excuse to fire him, he knew he had

nothing to hide, and was confident that, when he was given the opportunity, he

would prove that there was no basis for Fitzgerald’s decision, regardless of its

basis. R.2999 (“just a simple investigation to all this would have cleared this up ...

I would have never been fired, if there would have just been a simple investigation

in regards to the events of August the 17th.”)

      By denying Paske the opportunity to defend his decision to return home to

his children – who were without adult supervision – and by denying him the

opportunity to gather and present information to refute the veracity of Fitzgerald’s

accusations, Appellees violated the purpose of Chapter 614, which is to provide

law enforcement officers "procedural safeguards to reduce the risk that adverse




                                          15
employment actions would be based on unsubstantiated complaints,"6 and to

"ensure] that the accused officer receives sufficient information to enable him to

defend against the allegations." Lang v. Texas Dept. of Public Safety, 2014 WL

3562738 at *9 (Tex. App.--Austin July 18, 2014, no pet.) (citing Treadway, 309

S.W.3d at 784-85).

       An investigation would have proven that the facts directly contradicted

Fitzgerald’s refusal to believe that Paske’s mother-in-law was hit by a car,

seriously injured, and taken to the hospital by ambulance. Paske did not know that

Fitzgerald had chosen to brand him as a liar. Nor did Paske know that Fitzgerald

was claiming that Paske was simply trying to avoid a drug test. Had there been an

investigation of that accusation, the department would have learned that Paske was

willing to take one on the spot, and that he took and passed one the next day.

R.816, 255, 718, 2461. More significantly, the evidence would have shown that,

contrary to Appellees’ position, they were insistent that he be drug tested, but,

instead of ordering one themselves, they directed the therapist to recommend that

it take place. R.3024-39, 3047, 3056-58. Finally, an investigation could have

easily noted the disparity between Fitzgerald’s assertion that Paske was fired for



       6
           Turner v. Perry, 278 S.W.3d 806, 823 (Tex. App.--Houston [14 Dist.], 2009, pet.
denied).

                                                16
not reporting to the police department on August 17, 2011, and what he meant by

all the policy numbers listed on the termination letter. R. 2414.

              III. THE OTHER, EQUALLY UNSUPPORTED DEFENSES

      Appellees claim that they can avoid their violation of state law through

other means. They claim that since Paske’s declaratory judgment action was not

stated in his Original Petition, he could not assert any rights under that statute on

appeal – an argument belied by well-settled law. Their plea to the jurisdiction is an

argument that they are entitled to governmental immunity, but ignores the

Declaratory Judgment Act, which waives sovereign immunity for governmental

entities. They also claim that a post-termination administrative appeal of the box

marked on his F-5 seals his fate.

                 A. THE CLERK’S RECORD AND PASKE’S CLAIM
                 UNDER THE DECLARATORY JUDGMENTS ACT

      Appellees contend that, because Paske’s claim under the Declaratory

Judgment Act was not asserted in the pleadings he filed below, prior to removal to

federal court, neither the evidence nor the law are relevant to this appeal. There is

no merit to this argument, and no legal authorities support the proposition.




                                          17
       While it is generally true that a “trial court's judgment must conform to the

pleadings,” issues that are not raised in the pleadings will be treated as though

they were stated therein if they are “tried by express or implied consent of the

parties.” Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. App.–Houston [14th

Dist.] 2013). See also TEX.R.CIV.PRO. 67. And that is exactly what occurred at the

district court. Appellees not only consented to the district court’s consideration of

this claim, they affirmatively invited it.7 By so doing, they relieved Paske of any

responsibility for amending his state court pleadings.

       Avoiding any mention of this well-settled law of pleadings, Appellees turn

to no fewer than nine cases that are not on point. None, in fact, hold that an appeal

was lost because the record lacked a pleading that set forth the facts supporting the

claim at issue. In four of the nine cases, the record on appeal was found

insufficient because it did not include relevant evidence.8 The results in the other

       7
         In seeking summary judgment, Appellees advised the district court that the claim
pending before the court was “based on Chapter 614 of the Government Code.” R.73. That same
information had been provided by the federal court when it remanded the claim to the 240th
District Court of Fort Bend County. R.29-30, 62-65.
       8
         Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547, 549-550 (Tex. 2004) (no record of
the discovery responses the trial court relied on); Christiansen v. Prezelski, 782 S.W.2d 842
(Tex. 1990) (trial testimony pertinent to the question on appeal was not included in the record);
Roob v. Von Beregshasy, 866 S.W.2d 765, 766-767 (Tex .App.—Houston [1st Dist.] 1993, reh’g
of writ overruled) (no record of the facts the appellant claimed were overlooked); Salley v.
Houston Lighting and Power Co., 801 S.W.2d 230, 231-232 (Tex. App.—Houston [1st Dist.]
2007, writ denied) (no record of the evidence that formed the basis of the sanctions order being
challenged, or the evidence in opposition).

                                               18
five cases Appellees cite as support for their contention resulted from similar

omissions in the appellate record.9

       Equally without merit is the notion that Paske violated TEX.R.APP.P.

34.5(a)(1). He did not. Rule 34.5(a)(1) requires that all live pleadings be included

in the record, and the record on appeal in this case meets that requirement. This

rule does not nullify or overrule TEX. R. CIV. PRO. 67.

                 B. SOVEREIGN IMMUNITY IS UNAVAILABLE
      FOR CLAIMS BROUGHT UNDER THE DECLARATORY JUDGMENTS ACT

       Appellees’ only plea to the jurisdiction is that they have governmental

immunity from Paske’s claim. But, Paske’s claim is under the Declaratory

Judgment Act, which waives sovereign immunity for governmental entities.

Castro v. McNabb, 319 S.W.3d 721, 732 (Tex. App.-El Paso 2009, no pet.) (citing

Texas Education Agency v. Leeper, 893 S.W.2d 432, 436 (Tex.1994)).10 And an

       9
          Mallios v. Standard Ins. Co., 237 S.W.3d 778, 783 (Tex. App.—Houston [14th Dist.]
2007, pet. denied) (no record of the summary judgment motion being challenged or the
response); Atchison v. Weingarten Realty Management Co., 916 S.W.2d 74, 76-77 (Tex.
App.—Houston [1st Dist.] 1996, no writ) (motion for summary judgment on which appeal based
was not in the record); Nichols v. Byrne, 1999 WL 58750 (Tex. App.—Corpus Christi 1999, no
pet.) (not designated for publication) (same); Fiesta Mart, Inc. v. Hall, 886 S.W.2d 440, 442-443
(Tex. App.—Houston [1st Dist.] 1994, no writ) (statement of facts behind the trial court’s fact
finding not in the appellate record); Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex.
App.—Houston [1st Dist.] 2007, no pet.) (appellant failed to properly assign error).
       10
           Appellees cite City of Seagoville v. Lytle, 227 S.W.3d 401 (Tex. App.--Dallas 2007, no
pet.), but leave out an important holding from that case. Appellees ignore the fact that the court
also held that a declaratory judgment action against the government seeking a declaration of a
party's rights and status under a statute is not barred by governmental immunity. Id. at 410.

                                                19
order requiring officials to comply with statutory provisions is not a remedy

prohibited by sovereign immunity, even if a declaration to that effect compels the

payment of money. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

This is known as an "ultra vires exception" to sovereign immunity. Id. ("ultra

vires suits do not attempt to exert control over the state-they attempt to reassert the

control of the state … these suits do not seek to alter government policy but rather

to enforce existing policy.") To fall within this ultra vires exception, a suit must

not complain of a government officer's exercise of discretion, but rather must

allege, and ultimately prove, that the officer acted without legal authority or failed

to perform a purely ministerial act. Id.

       And this is precisely what the record proves: Fitzgerald, acting in his

official capacity, admittedly failed to perform the requirements imposed on him by

Chapter 614. Accordingly, a declaratory judgment to that effect is not barred by

sovereign immunity, even if it results in Paske being awarded back pay,11

reinstatement,12 costs, and attorney fees. Leeper, 893 S.W.2d at 446 (DJA

explicitly waives immunity for awards of costs and fees (citing TEX. CIV. PRAC. &

       11
          Guthery v. Taylor, 112 S.W.3d 715, 724 (Tex. App.–Houston [14th Dist], 2003, no pet.)
(ordering city to withdraw the disciplinary action and restore Guthery's position, along with back
pay and benefits)
       12
          City of Seagoville v. Lytle, 227 S.W.3d 401, 410 (Tex. App.--Dallas 2007, no pet.)
(reinstatement not barred by governmental immunity)

                                               20
REM. CODE § 37.009)). Contrary to the Appellees’ assertions, an award of back

pay is not barred. The very case the Appellees’ cite, Heinrich, holds that when a

statute creates an entitlement to payment, suits seeking to require an official to

comply with the law are not barred by immunity merely because they, in effect,

compel the governmental entity to make those payments. 284 S.W.3d at 371; see

also, Guthery, 112 S.W.3d at 724 (ordering city to withdraw the disciplinary

action and restore Guthery's position, along with back pay and benefits).

      Chapter 614 is such a statute because it creates a statutory requirement that

officers continue their employment until their law enforcement agency complies

with the procedures to terminate them. This, in turn, creates an entitlement or a

property interest. See Turner, 278 S.W.3d at 822 ( “A property interest protected

by procedural due process arises where an individual has a legitimate claim of

entitlement that is created, supported, or secured by rules or mutually explicit

understandings.”); Tamayo v. Lucio, 2013 WL 3770914, at *6 (Tex. App.--

Corpus Christi–Edinburg 2013, no pet.) (thanks to § 614, “Tamayo had a

‘legitimate expectation of continued employment.’”) Chapter 614 “created a

property interest: in the absence of a complaint that was signed, delivered,

investigated, and supported by evidence,” giving the officer a “legitimate

expectation of continued employment.” Tamayo, 2013 WL 3770914 at *6 (citing

                                          21
Turner, 278 S.W.3d at 822).

      Thus, Fitzgerald and Missouri City are not immune from the relief sought

by Paske.

      C. A POST-TERMINATION FINDING BY THE ADMINISTRATIVE LAW JUDGE
                       IS NOT BINDING ON THIS COURT

      While they cite no applicable legal authority for the proposition, Appellees

claim that a decision made pursuant to Texas Occupation Code § 1701.452, et

seq., is final and binding on the question presented in this appeal: whether

Appellees violated Chapter 614. As is evident from a reading of these statutes,

however, a determination reached under this law has no relation to whether a law

enforcement agency violated the mandatory provisions of Chapter 614. Indeed, the

relevant portion of the Occupation Code contains a provision titled, “Limitation on

Commissions Authority,” which states:

             This subchapter does not authorize the commission to
             review disciplinary action taken by a law enforcement
             agency against a person licensed under this chapter or to
             issue a subpoena to compel the production of a document
             prepared or maintained by the agency in connection with
             a disciplinary matter.

Tex. Occ. Code § 1701.457. There is no legal authority that supports this position.

It is an argument made up out of whole cloth. No court has held that Chapter 614

is satisfied with a post-termination hearing under this portion of the Occupation

                                         22
Code.

        With no applicable cases in support, Appellees cite to several cases in which

an appellate court is evaluating the scope of a Civil Service hearing officer’s

authority. City of Athens v MacAvoy, 353 S.W.3d 905 (Tex. App. -Tyler 2011, pet.

denied); City of DeSoto v White, 288 S.W.3d 389 (Tex. 2009); Nelson v City of

Dallas, 278 S.W.3d 90 (Tex. App.–Dallas 2009, pet. denied) (Dallas uses its own

form of civil service procedures)13; Bracey v. City of Killeen, 417 S.W.3d 94 (Tex.

App.-Austin, 2013, no pet) (officer selected an independent hearing officer rather

than the Civil Service Commission).

        Appellees fail to note this important fact present in each of these cases, and

how it distinguishes these cases from Paske’s. Whether a Civil Service Hearing

Officer exceeds his or her authority has nothing to do with whether Appellees

complied with Chapter 614. In these opinions, the state appellate courts carefully

examine a hearing officer’s action and evaluate whether he or she had the ability

to reinstate an officer. After all, “a hearing examiner is a tribunal of very limited

jurisdiction, and that it exercises special functions as dictated by statute.” DeSoto,

288 S.W.3d at 394 (hearing officer lacked authority to order reinstatement).


        13
          Significantly, in DeSoto, the city gave the officer notice of the complaints against him,
conducted two internal investigations prior to firing him, and notified the officer about certain
appeal rights. 288 S.W.3d at 3941. Paske received none of that prior to his termination.

                                                 23
DeSoto and the other cases cited by Appellees are concerned with what a Civil

Service-type hearing officer can and cannot do, not what a trial judge can and

cannot do with a declaratory judgment claim. See MacAvoy, 353 S.W.3d at 910

(“we conclude that the hearing examiner exceeded his jurisdiction”); Bracey, 417

S.W.3d at 112 (“hearing examiners actually lack jurisdiction to impose

reinstatement as an automatic or categorical remedy”)14 These rulings have no

bearing on the issue before this Court.

       What Appellees put forth is essentially a collateral estoppel argument

without any basis in fact or law. But they cannot prevail on this theory. As set

forth in Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994), “[a]

party seeking to assert the bar of collateral estoppel must establish that (1) the

facts sought to be litigated in the second action were fully and fairly litigated in

the first action; (2) those facts were essential to the judgment in the first action;

and (3) the parties were cast as adversaries in the first action.” Whether Appellees

complied with Chapter 614 was not even addressed, much less “fully and fairly

litigated,” in the administrative proceeding. R.05-118. Nor was there any



       14
          While the Nelson decision does not fit this pattern, that is because the officers failed to
exhaust administrative remedies with the city’s civil service process and the disciplinary decision
had yet to be made. There was no action by a hearing officer to evaluate. Nelson, 278 S.W.3d at
96. Nelson is totally inapplicable to Paske’s claim.

                                                 24
consideration as to whether Appellees met the requirements mandated in Chapter

614.

       While Appellees cite Turnage v. JPI Multifamily, Inc., 64 S.W.3d 614, 617

(Tex. App.–Houston [1st] 2001, no pet.) in support of their argument, that case is

not persuasive. There, the administrative law judge had to evaluate whether a

police officer had reasonable suspicion and probable cause to subject Turnage to a

breathalyzer test. Since Turnage’s claim in district court would depend on that

same question to evaluate whether the officer was acting as an agent of the

defendant, it is unsurprising that collateral estoppel applied. That is not applicable

to the matter on appeal in this case.

                                  IV. CONCLUSION

       By the time an officer is fired, the harm is done. The bell cannot be un-rung.

       The undisputed evidence shows that Appellees violated Chapter 614 of the

Government Code, and there is no acceptable excuse for their failure to follow the

clear language of the statute. Their arguments run contrary to the law. They insist,

and ask the Court to hold, that Chapter 614 does not mean what it says. Their

position would eviscerate Chapter 614, turning this law into a statute without

purpose or effect.




                                          25
                                              Respectfully submitted,

                                              /s/ Margaret A. Harris
                                              State Bar No. 09081400
                                              Paul R. Harris
                                              State Bar No. 24059905
                                              1007 Heights Boulevard
                                              Houston, Texas 77008
                                              (713) 526-5677
                                              Fax: (888) 370-5038
                                              margie@butlerharris.com
                                              paul@butlerharris.com


                            Certificate of Compliance

       The brief was prepared using WordPerfect X5, and contains 4,557 words. I
hereby certify that this opening brief complies with the type-volume limitation set
out in Tex. R. App. P. 9(a)(2)(B).

                                              /s/ Paul R. Harris



                               Certificate of Service

      I certify that on December 27, 2015, I mailed a copy of this brief to the
following counsel by electronic filing:

      Norman Giles
      William S. Helfand
      Chamberlain, Hrdlicka, White, Williams & Aughtry
      1200 Smith, Suite 1400
      Houston, Texas 77002

      Counsel for Appellees


                                         26
