Fifth Circuit Holds that Texas Government Code Chapter 614 Complaint Procedures Don’t Create a Constitutional Property Interest in Employment

By:  Charlie Olson & Mike Dixon, Haley & Olson P.C.

Chapter 614, Subchapter B of the Texas Government Code contains certain procedural protections for law enforcement officers with regard to “complaints.”  See Tex. Gov’t Code §§ 614.021-614.023.  A “complaint” against an officer must be in writing, signed by the complainant, and provided to the officer within a reasonable time after it is filed.  See id. § 614.022.  Disciplinary action cannot be taken against an officer until after the officer has received a copy of the signed complaint.  See id. § 614.023(b).  In addition, an officer cannot be indefinitely suspended or terminated based on the subject matter of a complaint unless it is investigated and there is evidence to prove the allegation of misconduct.  See id. § 614.023(c).

The original purpose of the statute appears to have been to protect officers from unfounded complaints and political pressures from outside the agency.  However, some Texas appellate courts have judicially expanded the term “complaint” to apply even to complaints generated within an agency. See, e.g., Treadway v. Holder, 309 S.W.3d 780, 784 (Tex. App.—Austin 2010, pet. denied).  The meaning and scope of the term “complaint” as used in Subchapter B, of Chapter 614 remains an unsettled matter in Texas. See Stem v. Gomez, No. 15-50264, 2016 WL 520284, at *6, 8 (5th Cir. Feb. 8, 2016); Paske v. Missouri City, 2014 U.S. Dist. LEXIS 47830 (S.D. Tex. 2014), aff’d 785 F. 3d 977 (5th Cir. 2015).

Chapter 614, Subchapter B has given rise to significant litigation.  Since the statute does not itself provide for a remedy it is generally sought to be enforced by declaratory and injunctive relief.  Early cases held that a successful plaintiff could recover back pay and back benefits. These cases pre-dated City of El Paso v. Heinrich, 284 S.W. 3d 366, 375-76 (Tex. 2009) and City of Houston v. Williams, 216 S.W.3d 827, 828 (Tex. 2007). Post–Heinrich/Williams cases have repeatedly held that sovereign/governmental immunity bars recovery of back-pay and back-benefits. See City of Seagoville v. Lytle, 227 S.W.3d 401 (Tex. App.—Dallas 2007, no pet.) (involving Chapter 614, Government Code); City of Round Rock v. Whiteaker, 241 S.W.3d 609 (Tex. App.—Austin 2007, pet. denied) (involving Chapter 614, Government Code); Bracey v. City of Killeen, 417 S.W. 3d 94, 113-115 (Tex. App.—Austin 2013, no pet.) (involving Chapter 614, Government Code); City of Bruceville-Eddy v. Ferguson, 2012 WL 5381420*2-3 (Tex. App.—Waco 2012, no pet.) (involving Chapter 614, Government Code).   Therefore, exposure based on the most recent cases is limited to reinstatement and attorney’s fees as part of equitable/declaratory relief.  See, e.g., Turner v. Perry, 278 S.W. 3d 806 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

However, in a case entitled Stem v. Gomez & City of Hearne, No. 15-50264, 2016 WL 520284 (5th Cir. Feb. 8, 2016), the plaintiff, a terminated police officer, filed a lawsuit pursuant to 42 U.S.C. § 1983 claiming a due process violation.  In essence, the officer asserted that Subchapter B of Chapter 614 created a property interest, and that the City of Hearne’s alleged failure to follow the procedures set forth in the statute deprived him of that property interest without due process of law.

If Subchapter B, Chapter 614 were found to create a federally-protected property interest, any discipline or termination of an officer would potentially give rise to a civil rights lawsuit if the officer claimed a deficiency in the Chapter 614, Subchapter B process. In addition, potential exposure would expand from reinstatement and attorney’s fees to monetary relief under Section 1983, both retrospective and prospective, in addition to attorney’s fees and equitable relief.

In the Federal District Court, the city sought dismissal in part based on the absence of a federally-protected property interest. The city’s attorneys pointed out to the court that Subchapter B of Chapter 614 is procedural in nature, that both the Fifth Circuit Court of Appeals and the United States Supreme Court have held that there is no federally-protected property interest in a process itself, and that the statute did not modify the at-will status of the officer. That is, to create a property interest in employment the statute or policy in question must address “why” an employee can be terminated, not just “how.” The court agreed with the city and dismissed the officer’s Section 1983 claim.

On appeal, a panel of the Fifth Circuit Court of Appeals held that dismissal of the officer’s Section 1983 claim was proper and that the statute did not create a federally-protected property interest. See Stem v. Gomez, No. 15-50264, 2016 WL 520284, at *1 (5th Cir. Feb. 8, 2016). The Fifth Circuit Court of Appeals held that Subchapter B of Chapter 614 was analogous to other laws and ordinances that required something to be done before termination, but had been held not to create a substantive property right in continued employment. Id. at *4-6.