Guthery v. Taylor

• Decision Date: 17 July 2003
• Docket Number: No. 14-02-00743-CV.,14-02-00743-CV.
• Citation: Guthery v. Taylor, 112 S.W.3d 715 (Tex. App. 2003)
• Parties: Kerry GUTHERY, Appellant, v. Earnest B. TAYLOR, in his Official Capacity as Chief of Police of the Sugar Land Police Department, and the City of Sugar Land, Appellees.
• Court: Texas Court of Appeals

112 S.W.3d 715

Kerry GUTHERY, Appellant, v. Earnest B. TAYLOR, in his Official Capacity as Chief of Police of the Sugar Land Police Department, and the City of Sugar Land, Appellees.

No. 14-02-00743-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 17, 2003.

Gregory B. Cagle, League City, for appellants.

Meredith Rene Riede, Sugar Land, for appellees.

Panel consists of Justices JOHN S. ANDERSON, SEYMORE, and GUZMAN.

OPINION

JOHN S. ANDERSON, Justice.

This police disciplinary case requires the court to construe Texas Government Code sections 614.022 and 614.023, which apply only to those police officers who are not covered by a civil service statute. Tex. Gov't Code Ann. § 614.021(3) (Vernon 1994). Section 614.022 provides: "To be considered by the head of a ... police department, the complaint must be: (1) in writing; and (2) signed by the person making the complaint." TEX. GOV'T CODE ANN. § 614.022 (Vernon 1994). Section 614.023 provides:

(a) A copy of a signed complaint against a law enforcement officer, fire fighter, or police officer 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.

Tex. Gov't Code Ann. § 614.023 (Vernon 1994).

The case arises because appellant, Kerry Guthery, received a disciplinary suspension based on an investigation stemming from a citizen's complaint. Guthery subsequently filed suit in the trial court, seeking a declaratory judgment delineating his rights under sections 614.022 and 614.023. Guthery also sought injunctive relief, or, alternatively, a writ of mandamus to compel Sugar Land Police Chief Earnest B. Taylor, in his capacity of Chief of Police, and the City of Sugar Land, appellees, to withdraw the disciplinary action taken against him and to restore his back pay and benefits.

The parties filed cross-motions for summary judgment, urging competing interpretations of the statutes at issue. The trial court granted appellees' motion and denied Guthery's motion, ordering that he take nothing.

We reverse the summary judgment in favor of appellees and render judgment in favor of Guthery (1) declaring appellees' actions violated sections 614.022 and 614.023, and (2) ordering appellees to withdraw the disciplinary action and restore Guthery's back pay and benefits.

FACTUAL AND PROCEDURAL BACKGROUND¹

On January 29, 2000, Guthery, a police officer, decided to disperse a party at 55 Ashbury Park. He knocked on the front door with his flashlight, damaging the door. On February 2, 2000, Mrs. Scraper, a citizen, telephoned the Sugar Land Police Department ("SLPD"), complaining an officer had damaged her door on January 29, 2000.

SLPD determined Guthery was the only officer at Scraper's house that night. After reviewing the incident report, Guthery's supervisor made notes on the report and returned it to Guthery to obtain more information about how the damage might have occurred.² Guthery responded to the questions that day in an e-mail.³ After receiving Guthery's answers, the SLPD's Professional Standards Division investigated the incident to determine whether any state laws or city policies had been violated. The investigation included meeting with Mrs. Scraper at her residence and photographing the damage. Additionally, Guthery supplied a written statement of the incident and was asked to provide a copy of the audio tape from that night. Guthery, however, was unable to provide an audio tape from that night because he failed to record this particular event.

The SLPD Professional Standards Division investigated the complaint as possible violations of state criminal law and city policies. During the investigation, there were multiple allegations against Guthery. The investigators ultimately concluded Guthery caused damage to Scraper's front door when he struck it several times with his flashlight, denting the wood surface and causing a panel of glass to break. The investigators also determined that Guthery failed to activate his tape recorder during the incident.

Police Chief Taylor reviewed the investigation report, and Guthery received a "Notice of Proposed Disciplinary Action" ("Notice") on April 7, 2000. Chief Taylor's proposal to suspend Guthery for three days was included in the Notice, and Taylor requested Guthery to appear at a meeting on April 13, 2000, in order to respond.⁴ The Notice was signed by Chief Taylor. After meeting with Guthery on April 13, 2000, Chief Taylor approved the suspension. Guthery appealed the disciplinary action to the City's Employees Board of Appeals, and after a hearing, the board reduced the suspension to one day.

Guthery then filed a petition for writ of mandamus, asking the trial court to direct Chief Taylor to withdraw the disciplinary action because it was imposed in violation of Texas Government Code section 614.023(b), and to award Guthery full back pay and benefits lost as a result of the disciplinary action. Additionally, Guthery sought to recover all attorney's fees incurred. Guthery subsequently amended his original petition and added the City of Sugar Land as a defendant. Further, he sought relief under the Uniform Declaratory Judgments Act, asking the court to declare the acts of the defendants to be in violation of the Texas Government Code.⁵

Guthery and appellees filed cross-motions for summary judgment, setting forth competing constructions of Texas Government Code sections 614.022 and 614.023. Guthery argued appellees' actions violated section 614.022 because there was no written and signed complaint from Mrs. Scraper, the owner of the residence where the damage occurred. Guthery also argued appellees could not rely on the Notice because it included the discipline to be imposed, was delivered after conclusion of the investigation and was not signed by Scraper. Guthery noted, "at the conclusion of the investigation would not be `within a reasonable time after the complaint is filed' as required by [section 614.023(a)]."

Appellees' motion for summary judgment was based on the following: (1) compliance with sections 614.022 and 614.023 is not mandatory; and, in the alternative, (2) the procedures taken by appellees did comply with these sections. Appellees urged the court to find that Mrs. Scraper's signature was not statutorily required on the complaint, and that Chief Taylor's signature was sufficient because he was the officer who charged Guthery and proposed disciplinary action. Appellees also argued the Notice given to Guthery at the completion of the investigation and before any disciplinary actions were taken was proper.

Following a hearing, the trial court granted appellees' motion and denied Guthery's motion. The trial court ordered Guthery take nothing on his claims and causes of action against appellees.

ISSUES PRESENTED

Guthery raises two issues on appeal. In issue one, he argues, "A copy of the signed complaint was not given to [Guthery] within a reasonable time after it was filed and before disciplinary action was taken and the determination of `reasonable' is for the fact finder." In issue two, he argues, Chief Taylor "considered a complaint against a police officer ... which was not in writing and signed by the complainant as required by [Texas Government Code section 614.022]." As part of issue two, Guthery reiterates his argument that Chief Taylor did not provide him with a copy of the signed complaint within a reasonable time.

In response to issue one, appellees argue that determination of "reasonable time" is a question of law. In response to issue two, they argue the "complaint" that must be signed in the present case was the "Notice of Proposed Disciplinary Action," not Scraper's complaint. They also argue the complaint was given to Guthery "within a reasonable time" because it was given to him before Chief Taylor took disciplinary action against Guthery.

Thus, the controlling issue is one of statutory construction: under the facts of this case, does the Notice suffice as the "complaint" which must be signed and in writing, and given to the officer "within a reasonable time," under Texas Government Code sections 614.022 and 614.023? Only if we determine the Notice suffices as the "complaint" must we decide whether the Notice was given to Guthery "within a reasonable time." Accordingly, after setting forth the standard of review, we begin by addressing Guthery's issue two.

STANDARD OF REVIEW AND NATURE OF JUDGMENT SOUGHT

The parties do not dispute the relevant facts. Therefore, this is a proper case for summary judgment. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When, as here, parties file cross-motions for summary judgment, each party bears the burden of establishing it is entitled to judgment as a matter of law. Id. When the trial court grants one party's motion for summary judgment and denies the other, we review both motions; and, if we find the trial court erred, we will reverse and render the judgment the trial court should have rendered. Id.; Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999). Generally, matters of statutory construction are legal questions, subject to de novo review. See State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002).

An original proceeding for a writ of mandamus initiated in the trial court is a civil action subject to trial and appeal on substantive law issues and rules of procedure as any other civil suit. Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n. 1 (Tex.1991). A writ of mandamus will issue to compel a public official to perform a ministerial act. Id. at 793. An act is ministerial when the law clearly delineates the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. Id. A writ of mandamus will not issue to...