Edward Baldridge v. Chuck Brauner, in His Official Capacity as Chief of Police of the Spring Branch Independent School District Police Department and the Spring Branch Independent School District
Opinion issued August 29, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00852-CV
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EDWARD BALDRIDGE, Appellant
V.
CHUCK BRAUNER, IN HIS OFFICIAL CAPACITY AS CHIEF OF
POLICE OF THE SPRING BRANCH INDEPENDENT SCHOOL
DISTRICT POLICE DEPARTMENT, AND THE SPRING BRANCH
INDEPENDENT SCHOOL DISTRICT, Appellees
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2009-36082
MEMORANDUM OPINION ON REHEARING
We originally issued our opinion and judgment in this appeal on June 27,
2013. Appellant Edward Baldridge has moved for en banc reconsideration. We
withdraw our previous opinion and judgment, and issue this opinion and a new
judgment in its place. We dismiss the motion for en banc reconsideration as
moot. 1
After Edward Baldridge’s employment was terminated by Spring Branch
Independent School District (“District”) Police Department, he filed suit claiming
that the District and its Chief of Police, Chuck Brauner (Brauner, collectively with
District, appellees) violated Government Code section 614.023 and sought
declaratory and injunctive relief. 2 The trial court denied appellant’s motion for
summary judgment and granted appellees’ cross-motion for summary judgment.
On appeal, appellant contends that the trial court erred in granting appellees’
1
See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 40 & n.2 (Tex. App.—
Houston [1st Dist.] 2004, pet. denied).
2
Government Code chapter 614, subchapter B requires that any complaint against
a law enforcement officer or fire fighter covered by this chapter be in writing and
signed by the person making the complaint. TEX. GOV’T CODE ANN. § 614.022
(West 2012). Section 614.023 further provides that:
(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 (West 2012).
2
summary judgment motion and denying his summary judgment motion because:
(1) appellees were required under section 614.023 to provide him with a copy of
any complaints filed against him that formed part of the basis for the termination of
his employment, (2) they failed to do so, and (3) they were not allowed to
circumvent the requirements of section 614.023 by alleging other bases for
terminating his employment. We affirm.
Background
Appellant was employed by the District Police Department for eleven and a
half years. On Sunday, April 27, 2008, appellant responded to a call from Dr.
Walter Holmsten complaining that his fence had been damaged by several adult
softball players while they were using the Spring Branch Middle School baseball
field. Holmsten said that the ball players looked “shady” and asked appellant to
stop them from using the field. Appellant informed Holmsten that it is a public
facility and he could not force the players to leave.
Dissatisfied with that answer, Holmsten informed appellant that his friends
and family knew members of the District school board and they would have his
job. Appellant promised to attend the next school board meeting to refute any
unfounded allegations. Appellant then sought out and spoke with the softball
players who denied damaging the fence. He advised them to stay off of the
Holmsten property and reported back to his radio dispatcher. He then called the
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dispatcher, a personal friend, on a “back line” on his personal cell phone. Upset by
Holmsten’s characterization of the ball players as “shady,” he referred to Holmsten
as a “son-of-a-bitch” and an “idiot” during the ensuing conversation.
The next day, Holmsten complained to the District Associate Superintendent
Ruben Reyes about the incident. Reyes, in turn, contacted Brauner, gave him
Holmsten’s phone number, and asked him to look into the matter. Brauner was
unable to locate the “call slip”3 for the incident but listened to the recording of the
call between appellant and the dispatcher. Brauner interviewed Mr. and Mrs.
Holmsten who described how “intimidated” they felt and that appellant was
“angry” at times during the incident. Holmsten further complained that appellant
never contacted the players to resolve the dispute. Upon Brauner’s request,
Holmsten submitted his complaint in writing.
The day after he was contacted by Reyes, Brauner noted appellant wearing a
Bluetooth device while on duty, in violation of the department’s dress code. On
May 5, 2008, Brauner issued a counseling report to appellant, advising him of the
dress code policy violation. Appellant signed and acknowledged receipt of the
report.
On May 23, 2008, Brauner recommended to the District Human Resources
Director that appellant’s employment be terminated. Brauner’s recommendation
3
A call slip is an internal document upon which SBISD police officers are required
to document each call for service.
4
begins by discussing the internal investigation stemming from Holmsten’s
complaint. According to Brauner, his investigation showed that appellant was
“non-responsive and non-professional [sic]” during the Holmsten incident and “[i]t
is for this incident and based on my investigation of the same that I am
recommending termination at this time.” Brauner then goes on to cite a handful of
other performance deficiencies and procedural violations spanning appellant’s
decade-long tenure, including the Bluetooth incident on April 29th. Brauner’s
recommendation states: “My recommendation is based on complaints from the
community, [appellant’s] fellow officers, and other SBISD Departments.”
Appellant was unaware of the investigation into the Holmsten incident until
Brauner presented him with a termination notice four days later. The May 27,
2008 termination notice stated that Brauner concluded that although Holmsten had
“a legitimate complaint,” appellant “took no action to resolve the matter” and “did
not request a Call Slip issued for this Call for Service.” The notice concludes:
[Appellant] failed to respond to this Call for Service in an acceptable
and professional manner as set forth in the SBISD Police Department
General Orders. [Appellant’s] failure to perform includes but is not
limited to . . . other matters of record that clearly identify
unacceptable job performance and repeated failure to follow
Standards of Operation during [appellant’s] tenure with the SBISD
Police Department.
5
Appellant was not provided a copy of Holmsten’s written complaint or
Brauner’s memo before his employment was terminated, and he did not learn of
the full details of Brauner’s investigation until the discovery phase of this lawsuit.
Jurisdiction
Under the Uniform Declaratory Judgments Act (UDJA), persons “affected
by a statute, municipal ordinance, contract, or franchise may have determined any
question of construction or validity arising under the instrument, statute, ordinance,
contract, or franchise and obtain a declaration of rights, status, or other legal
relations thereunder.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004 (West Supp.
2008). 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. See Tex. Natural Res. Conservation Comm’n v. IT–Davy,
74 S.W.3d 849, 859–60 (Tex. 2002); Tex. Educ. Agency v. Leeper, 893 S.W.2d
432, 446 (Tex. 1994). Governmental immunity, however, does bar suits for
declaratory judgment seeking a declaration of the government’s liability for money
damages. See IT–Davy, 74 S.W.3d at 859–60.
We liberally construe appellant’s claims to seek: (1) declarations that (a)
appellees violated Government Code section 614.023, and (b) appellant was
entitled to the withdrawal of the disciplinary action, reinstatement to his original
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position and rank, and to otherwise be “made whole”;4 (2) injunctive relief to
effectuate the declarations; and (3) court costs and attorney’s fees. See TEX. GOV’T
CODE ANN. § 614.023 (West 2012); City of Waco v. Bittle, 167 S.W.3d 20, 26
(Tex. App.—Waco 2005, pet. denied) (liberally construing plaintiff’s allegations).
As such, appellant’s declaratory judgment action and request for reinstatement are
not barred by the doctrine of governmental immunity. See Leeper, 893 S.W.2d at
446 (holding UDJA necessarily waives governmental immunity for attorney’s fees
in suits to construe legislative pronouncements); City of Seagoville v. Lytle, 227
S.W.3d 401, 410–12 (Tex. App.—Dallas 2007, no pet.) (holding that declaratory
judgment, mandamus, and injunctive relief claims alleging termination in violation
of Government Code sections 614.022 and 614.023 and seeking prospective
reinstatement only were not barred by governmental immunity, but claims for back
pay and retrospective benefits were barred).
Summary Judgment
Appellant filed a traditional motion for summary judgment in which he
argued that his employment was terminated because of the Holmsten incident,
appellees were required to give him a copy of Holmsten’s complaint before taking
4
We do not construe appellant’s request to be “made whole” as a request for back
pay or benefits. A declaratory judgment action seeking back pay and benefits is a
suit for money damages barred by governmental immunity absent legislative
consent. See City of Houston v. Williams, 216 S.W.3d 827, 828–29 (Tex. 2007)
(stating that retrospective monetary claims—i.e., claims for back pay and
benefits—are generally barred by immunity).
7
disciplinary action against him, and appellees failed to do so in violation of section
614.023. Therefore, appellant argued, he was entitled to his requested declarations
and injunctive relief as a matter of law. Appellees filed a response and a cross-
motion for summary judgment in which they argued that (1) appellant’s
employment was not terminated because of the Holmsten incident, but rather
because of internal performance issues relating to how appellant handled
Holmsten’s complaint, and these types of internal performance issues are not
subject to the requirements of section 614.023, and (2) appellant’s employment
was terminated for other performance issues that are unrelated to the Holmsten
incident (e.g., the Bluetooth incident) and appellant does not argue that section
614.023 applies to any of these alternative grounds for terminating his
employment. Appellant responded that Holmsten’s letter was clearly a
“complaint” subject to section 614.023, and that Brauner’s notice clearly indicated
that appellant’s employment was being terminated based on the Holmsten incident.
Appellant never addressed the other performance issues that appellees argued were
sufficient to justify the termination of appellant’s employment.
On appeal, appellant argues that the trial court erred in denying his motion
for summary judgment and granting appellees’ cross-motion for summary
judgment because his employment was terminated, at least in part, as a result of the
Holmsten incident and appellees failed to provide him with a copy of Holmsten’s
8
complaint before taking disciplinary action against him in contravention of section
614.023. Appellant further argues that appellees’ violation of section 614.023 is
not excused merely because other bases for terminating his employment existed.
Alternatively, appellant contends that appellees also violated section 614.023 by
not providing him with a copy of Brauner’s “complaint” regarding the various
internal policy violations that also formed the basis of the termination of
appellant’s employment.
Appellees counter that the trial court’s grant of their motion for summary
judgment was proper because appellant was not terminated as a result of the
Holmsten incident, but rather as a result of internal performance issues spanning
appellant’s tenure which included the unprofessional phone call, failing to
complete a call slip, violating policy by wearing a Bluetooth device, and a handful
of other infractions.5 Appellees further contend that even if they had been required
to provide appellant with a copy of Holmsten’s complaint prior to terminating his
employment, they were nonetheless entitled to summary judgment based upon
numerous other grounds for termination unrelated to the Holmsten incident (e.g.,
the Bluetooth incident), which were sufficient grounds, alone, for termination.
5
Specifically, appellees point to the following internal policy infractions that are
unrelated to the Holmsten incident: 2008 (violating dress code by wearing
Bluetooth device while on duty), 2007 (failing to complete reports, clear call slips,
and conduct truancy checks), 2004 (failing to complete accident report), 2002
(failing to report for duty), and 2001 (failing to properly handle bank deposit).
9
A. Standard of Review
“Declaratory judgments decided by summary judgment are reviewed under
the same standards of review that govern summary judgments generally.” Cadle
Co. v. Bray, 264 S.W.3d 205, 210 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied); see TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (West Supp. 2008).
When both sides move for summary judgment and the trial court grants one motion
and denies the other, we review both sides’ summary judgment evidence and
determine all questions presented; and, if we find the trial court erred, we will
reverse and render the judgment the trial court should have rendered. See FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).
When, as here, the summary judgment does not specifically state the grounds on
which it was granted, we must affirm the summary judgment if any of the asserted
grounds are meritorious. Id.
The issues raised in this appeal involve statutory interpretation subject to de
novo review. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009). As with all
questions of statutory interpretation, our objective is to determine and give effect to
the legislature’s intent, looking to the statute’s plain language and avoiding any
construction that would render a provision meaningless. See, e.g., id.; Columbia
Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008).
10
B. Subchapter B of Government Code Chapter 614
Subchapter B of Government Code Chapter 614 governs complaints against
peace officers who are not covered by a civil service statute and describes the
procedures that must be followed before any disciplinary action may be taken
against such officers. See TEX. GOV’T CODE ANN. §§ 614.021–.023 (West 2012).6
Specifically, section 614.022 requires that any complaint against such an officer
must be in writing and signed by the complainant before it can be considered by
the head of a local law enforcement agency. Id. at § 614.022. A copy of the
complaint must also be given to the officer a reasonable time after it is filed. Id. at
§ 614.023(a). Disciplinary action, including termination, may not be taken against
the officer until the officer receives a copy of the complaint, “the complaint is
investigated; and . . . there is evidence to prove the allegation of misconduct.” Id.
at § 614.023(c).
C. Discussion
The summary judgment evidence establishes that appellant’s employment
was terminated based upon his response to the Holmsten incident and other,
unrelated internal performance issues including the Bluetooth incident. Although
he did not raise this issue in his motion for summary judgment or in his response to
6
See also Guthery v. Taylor, 112 S.W.3d 715, 717 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (stating sections 624.022 and 614.023 only apply to police
officers not covered by civil service statute).
11
appellees’ motion, appellant argues on appeal that section 614.023 applies to
internal, as well as external, complaints against peace officers. See Treadway v.
Holder, 309 S.W.3d 780, 784 (Tex. App.—Austin 2010, pet. denied) (holding
Government Code section 614.023 applies to “any allegation of misconduct that
could result in disciplinary action,” including complaints initiated solely by
officer’s supervisor). Assuming without deciding that section 614.023 applies to
internal performance issues, we conclude that appellees complied with section
614.023 when they terminated appellant’s employment based upon the Bluetooth
incident.
Here, appellees established that appellant was informed of the allegation
against him—wearing a Bluetooth device while on duty in violation of
departmental policy. Brauner gave appellant a counseling report that advised
appellant of the dress code policy violation prior to the termination of appellant’s
employment. Appellant signed and acknowledged receipt of the report. Brauner,
who witnessed appellant wearing the Bluetooth device while on duty, investigated
the claim by discussing the matter with appellant.
Although he did not specifically recall wearing the device on April 29, 2008,
appellant testified at his deposition that he had explained to Brauner that given the
time he was supposedly seen wearing the device, he was probably on the phone
confirming that his child had arrived safely at home after school. He also testified
12
that he knew that it was against departmental policy to wear a Bluetooth device
while on duty, but he nevertheless wore it for “safety” reasons. Appellees’
summary judgment evidence included copies of (1) the District’s policy regarding
the wearing of Bluetooth devices while on duty, (2) the counseling report that was
given to appellant regarding the Bluetooth incident, and (3) relevant excerpts from
appellant’s deposition.
Although appellant argues on appeal that internal performance allegations
are subject to section 614.023, citing to Treadway, appellant does not now, nor has
he ever argued that the counseling report he was given for the Bluetooth device
incident prior to the termination of his employment was insufficient under this
section. See 309 S.W.3d at 784. Appellant also never argued to the trial court that
the underlying allegation was false, unsubstantiated, or an insufficient basis for
termination. In fact, appellant never even addressed the Bluetooth incident at the
trial court level.
Our review of the evidence and trial court arguments leads us to conclude
that appellees met their burden of establishing that they were entitled to summary
judgment based on the Bluetooth incident as a matter of law, and that appellant
failed to raise a fact question with regard to this issue. As such, the trial court
properly granted appellees’ motion for summary judgment and denied appellant’s
motion.
13
Conclusion
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
14