Dan Turner and Henry Bonaparte v. Troy Perry

Affirmed in Part and Reversed and Remanded in Part and Opinion filed

January 27, 2009

Affirmed

in Part and Reversed and Remanded in Part and Opinion filed January 27, 2009.

In The

Fourteenth Court of

Appeals

____________

NO. 14-07-01060-CV

____________

DAN TURNER AND HENRY BONAPARTE , Appellants

V.

TROY PERRY , Appellee

On Appeal from the 215th

District Court

Harris County, Texas

Trial Court Cause No. 2006-02596

O P I N I O N

In this accelerated interlocutory appeal, police officers

Dan Turner and Henry Bonaparte challenge the trial court = s denial of their

assertions of qualified and official immunity. Appellee Troy Perry sued

appellants, his former supervisors, alleging that they took adverse employment

actions against him and slandered him in retaliation for his official complaint

accusing them of unlawful conduct. Appellants contend that (a) they acted

in response to unprotected speech, (b) their employer = s grievance

process provided Perry with adequate due process, and (c) their representations

of Perry = s conduct were

made in good faith. We reverse the trial court = s denial of

summary judgment based on qualified immunity to one of Perry = s First Amendment

claims, affirm the trial court = s ruling in all other respects, and remand

for further proceedings.

I. Factual and Procedural Background

Alief Independent School District ( A AISD @ ) employed

appellee Troy Perry as a A Peace Officer-Gang Enforcement Officer @ in 2004.

Sergeant Henry Bonaparte was Perry = s direct

supervisor, and Captain Dan Turner was the captain of the AISD police

department. As a police officer responsible for investigating gang-related

activity, Perry interviewed students and obtained and evaluated documents

containing gang-related information. According to Plaintiff = s Seventh Amended

Petition, Perry completed an application in July 2004 to submit AISD = s A gang database @ to the Department

of Public Safety ( A DPS @ ); however, Turner

did not sign the application, and the appellants did not allow Perry to release

the information to DPS.

In April 2005, information Perry had learned through his

work as a gang officer caused him concern that there would be an increased risk

of gang-related violence at several AISD schools on May 5 and May 16, 2005. He

communicated the information he had gathered to gang investigators of several

police agencies and the office of the Texas Attorney General. On April 21 and

22, 2005, he emailed the information to Turner, Bonaparte, and other law

enforcement agencies and personnel. According to Perry, DPS employee Vicki

Norris contacted him and asked if he would allow her to post this information

to a website on his behalf. The website, referred to in the record as A CLEO, @ is a

password-protected site accessible to criminal-justice personnel. To obtain

access, an officer must complete a written application, which must also be

signed by the officer = s supervisor. Perry had completed an

application, but because appellants refused to sign it, he could not access

CLEO directly. Perry therefore authorized Norris to post the information for

him.

After the information was published on the CLEO website,

Bonaparte emailed Perry that A the [AISD] superintendent = s office had been

inundated with calls for information in reference to the warning you had posted

on the CLEO web site. @ On May 4, 2005, Bonaparte again emailed

Perry, stating, A From this point on no information[]

regarding activities in and around this district will be given out without

prior written approval from [a] departmental supervisor. Your decision to

export data is causing a number of problems; this directive includes both

written and verbal communications. @ In addition,

Perry was demoted from his position as a gang officer to a position as a patrol

officer and placed on a A growth plan @ on July 15,

2005. According to Perry, both Turner and Bonaparte informed him that these

disciplinary measures were, in part, a response to the CLEO posting. Perry

filed a grievance concerning that action, and in an undated memorandum,

Bonaparte summarized the discussion that occurred during Perry = s grievance

hearing on September 13, 2005. According to Bonaparte, Perry contended that he

was reassigned from his position as a gang officer to a position as a patrol

officer as a A direct result of his disclosure of a gang[-]related

issue via a national web site. @ Bonaparte further stated that A Perry did not

perform in a satisfactory fashion during his tenure as a gang officer and he

will not be returned to the position. @ He concluded

that A Perry has had

problems with following the chain of command and has disseminated information

to other outlets without supervisory approval. @

While these events were unfolding, Perry allegedly learned

that Bonaparte and Turner had entered Perry = s office while he

was away and removed a traffic citation he had written concerning an AISD

teacher. According to Perry, Bonaparte told him that the citation was removed

because the teacher was A politically connected. @ On July 20,

2005, Perry asked the advice of an acquaintance at the Harris Count District

Attorney = s Police Integrity

Unit, and he was told that he should collect evidence of the alleged

misconduct. Perry then obtained still photographs from a surveillance tape

that reportedly shows Bonaparte and Turner entering Perry = s office and

leaving with a piece of paper. On or about October 18, 2005, Perry lodged an

official complaint with an assistant district attorney in which he alleged that

Bonaparte and Turner had unlawfully tampered with a government record.

According to Perry, an assistant district attorney told him that the cited

teacher said Turner had assured her that he would A take care of @ the citation.

On October 27, 2005, Perry filed a complaint with the

school district in which he alleged that appellants had retaliated against him

for reporting their conduct to the district attorney = s office. In

connection with this grievance, Perry also related that he arrested a female

student at Elsik High School on September 21, 2005, and at Turner = s instruction,

transported the student to the AISD police station for processing. At the

station, Perry telephoned an assistant district attorney who accepted Perry = s charge that the

student resisted arrest. Perry also intended to arrest the student for A Disorderly Conduct

B Abusive Language, @ but he was notified

by the police dispatcher that Turner had ordered him to leave the student in

the custody of Officer Wayne Cox and return to Elsik High School. While he was

away, Cox issued the student a citation for A Disruption of

Class @ and released

her. In a subsequent letter to Bonaparte, Perry stated that he advised the

assistant district attorney that Cox had erroneously released the student, and

the attorney advised Perry to complete the charges and process the arrest at a

later date. Perry also complained about the release to Turner, who allegedly

responded that he, Turner, had been A ordered to issue

all students who were arrested at Elsik citations and release them. @ Perry asserts

that he completed an offense report on the day of these events regarding the

charges against the student, and appellants expressed no objection to the

report at that time.

The charges against the Elsik High School student were

entered into the Juvenile Offender Tracking system on September 29, 2005, [1]

and Perry attempted unsuccessfully to apprehend the student on the same day.

When he returned to the station, he was given a letter of reprimand, dated

September 28, 2005, in which Turner stated that Perry violated AISD = s procedural

requirement that all officers notify an AISD police supervisor of an alleged

criminal offense before contacting the Harris County District Attorney = s office to

institute charges. The letter continued, A You are notified

by receipt of this memorandum that you are required to contact an AISD Police

Supervisor prior to contacting any ADA for charges. @ Perry concluded

that the reprimand, A arbitrarily enforcing an unwritten

practice, @ was issued to retaliate against him for reporting

Bonaparte and Turner to the Harris County District Attorney = s office for

illegal conduct.

Perry filed further grievances on October 11, November 2,

and November 11, 2005. After he filed the November 11th grievance, AISD = s Director of

Human Relations, Rose Benitez, summoned Perry to her office. In a meeting

between Benitez, Perry, and Bonaparte, AISD terminated Perry = s employment. On

November 17, 2005, Benitez wrote to Perry and stated that, at her November 11th

meeting with him, they discussed issues concerning Perry = s job performance,

including his A [i]nappropriate interaction with students. @ Benitez further

stated that a copy of the letter would be placed in Perry = s personnel file. [2]

On January 12, 2006, Perry sued Turner, Bonaparte, and

AISD. He alleged that AISD terminated his employment in retaliation against

him for reporting violations of law by Turner and Bonaparte. He asserted

claims against Turner and Bonaparte in their individual capacities for slander

and intentional infliction of emotional distress. In addition, he alleged that

they took adverse employment actions against him in violation of his rights

under the First and Fourteenth Amendments.

Turner and Bonaparte moved for partial traditional summary

judgment on the grounds that they are protected from suit by qualified immunity

and official immunity, and Perry failed to exhaust administrative remedies.

The trial court denied the motion on November 26, 2007, and this accelerated

interlocutory appeal timely ensued.

II. Issues

Presented

In their first issue, Turner and Bonaparte contend the

trial court erred in denying their summary-judgment motion asserting qualified

immunity to Perry = s claims that they violated his

constitutional rights to freedom of speech and due process. In their second

issue, appellants contest the trial court = s failure to grant

summary judgment based on appellants = assertions of

official immunity to Perry = s claims of slander. [3]

III. Standard of Review

To succeed in a motion for traditional summary judgment

under Texas Rule of Civil Procedure 166a(c), the movant must establish that

there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. W. Invs., Inc. v. Urena , 162 S.W.3d 547,

550 (Tex. 2005) (citing Lear Siegler, Inc. v. Perez , 819 S.W.2d 470, 471

(Tex. 1991)). In reviewing a summary judgment, we consider the evidence in the

light most favorable to the non‑movant and resolve any doubts in the non‑movant = s favor. Id. (citing

Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546 , 548 B 49 (Tex. 1985)).

IV. Analysis

A. Qualified

Immunity

Qualified immunity protects governmental officials

performing discretionary functions from suit if their actions were objectively

reasonable in the light of then clearly-established law. Anderson v.

Creighton , 483 U.S. 635, 638 , 107 S. Ct. 3034, 3038 , 97 L. Ed. 2d 523

(1987). Stated differently, the question of whether an official may be held

personally liable for an allegedly unlawful official action is determined by

examining the objective legal reasonableness of the action in light of the laws

that were clearly established at that time. Id. at 639 , 107 S. Ct. at

3038 (citing Harlow v. Fitzgerald , 457 U.S. 800 , 818 B 19, 102 S. Ct.

2727 , 2738 B 39, 73 L. Ed. 2d 396 (1982)). Because the official = s actions are

measured against a standard of objective legal reasonableness, the official = s subjective

belief that his conduct was lawful is irrelevant to the analysis. Id.

at 641, 107 S. Ct. at 3040 .

In analyzing whether qualified immunity applies, we first determine

if the facts, taken in the light most favorable to the party asserting injury,

showed that the official = s conduct violated a constitutional

right. See Scott v. Harris , 550 U.S. 372 , B , 127 S. Ct. 1769 ,

1774 B 75, 167 L. Ed. 2d

686 (2007) (noting that, when reviewing ruling on an official = s motion for

summary judgment claiming qualified immunity, the court usually adopts the

plaintiff = s version of the facts). If the facts as alleged

constitute such a violation, we consider whether the right was clearly

established in light of the specific context of the case. Id. 127 S.

Ct. at 1774 ; Anderson v. Creighton , 483 U.S. 635, 640 , 107 S. Ct. 3034,

3039 , 97 L. Ed. 2d 523 (1987). The right was A clearly

established @ if the contours of the law at the time of the conduct

at issue gave fair warning that such conduct would violate the employee = s constitutional

rights. See Hope v. Pelzer , 536 U.S. 730,

741 , 122 S. Ct. 2508, 2516 , 153 L. Ed. 2d 666 (2002) (citing United States

v. Lanier , 520 U.S. 259 , 117 S. Ct. 1219 , 137 L. Ed. 2d 432 (1997)); Saucier

v. Katz , 533 U.S. 194 , 202, 121 S. Ct. 2151 , 2156, 150 L. Ed. 2d 272

(2001) ( A The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted. @ ); Eastland County Coop. Dispatch v.

Poyner , 64 S.W.3d 182 , 195 B 96 (Tex. App. C Eastland 2001,

pet. denied) (applying Saucier ).

1. Claims

Arising from Alleged Violations of Perry = s First Amendment

Rights

Since 1968, courts have followed the Pickering balancing

test to determine if the speech of a public employee is protected by the First

Amendment. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will

County, Ill. , 391 U.S. 563 , 88 S. Ct. 1731 , 20 L. Ed.2d 811 (1968). To

apply the Pickering test in determining whether a public employer

unconstitutionally penalized an employee for engaging in protected speech, we

balance (a) the interest of the employee, as a citizen, in commenting upon

matters of public concern, and (b) the interest of the governmental

agency, as an employer, in promoting the efficiency of the public services it

performs. Id. at 568 , 88 S.Ct., at 1734 B 35. In analyzing

the constitutionality of the employer = s actions, A courts look to the

facts as the employer reasonably found them to be. @ Waters v.

Churchill , 511 U.S. 661 , 677 B 78, 114 S. Ct.

1878, 1889 , 128 L. Ed. 2d 686 (1994) (plurality op.). [4]

Whether an employee = s speech addresses a matter of public

concern is determined by the content, form, and context of a given statement,

as revealed by the whole record. Connick v. Myers , 461 U.S. 138 , 103 S.

Ct. 1684 , 75 L. Ed. 2d 708 (1983).

In Connick , the Court discussed several facts on

which it relied in analyzing whether speech A touched upon a

matter of public concern. @ Id. at 149 , 103 S. Ct. at 1691 .

These factors included:

$

whether the

speech was merely an extension of an employment dispute; [5]

$

whether the

speech was focused on A gather[ing] ammunition for another

round of controversy @ with the employee = s superiors; [6]

$

whether the

speech occurred at work or on the speaker = s own time and outside of the working areas of the office; [7]

$

whether the

speech impeded the ability of the speaker or other employees to perform their

duties; [8]

$

whether the

employee sought to inform the public that the employer A was not discharging its

governmental responsibilities in the investigation and prosecution of criminal

cases @ ; [9]

and

$

whether

the employee A [sought] to bring to light actual or potential

wrongdoing or breach of public trust @ on the part of

superiors. [10]

Although

these factors are not a general standard against which statements must be

judged, they illustrate the application of the A content-form-context @ test required by Pickering .

See id . at 147, 103 S. Ct. at 1690 .

In 2006, the United States Supreme Court decided Garcetti

v. Ceballos , in which it further refined the First Amendment balancing test

applicable to governmental employees. 547 U.S. 410 , 126 S. Ct. 1951 , 164 L.

Ed. 2d 689 (2006). As the Fifth Circuit Court of Appeals explained, Garcetti

A added a threshold

layer @ to the Pickering/Connick

analysis. Davis v. McKinney , 518 F. 3d 304, 312 (5th Cir. 2008). [11]

In Garcetti , a supervising district attorney was disciplined after

writing a memorandum that his employer considered inflammatory. Garcetti ,

547 U.S. at 420 B 23, 126 S. Ct. at 1959 B 61. The Court

explained that the employee wrote the memorandum A as a prosecutor

fulfilling a responsibility to advise his supervisor about how best to proceed

with a pending case. @ Id. at 421 , 126 S. Ct. at 1960 .

Significantly, the Court held that, as a threshold matter, employees are not

speaking as citizens for First Amendment purposes when they speak A pursuant to their

official duties. @ Id. Thus, under Garcetti ,

the reviewing court must shift its initial focus A from the content

of the speech to the role the speaker occupied when he said it. @ Williams v. Dallas Indep. Sch. Dist. , 480 F. 3d 689, 692 (5th Cir. 2007)

(per curiam).

In sum, the inquiry regarding whether a governmental

employee = s speech is

constitutionally protected now involves three considerations. First, we must

determine whether the employee = s speech was made pursuant to his or her

official duties. Davis , 518 F.3d at 312 . [12]

If so, then the speech is not protected by the First Amendment, because A [r]estricting

speech that owes its existence to a public employee = s professional

responsibilities does not infringe any liberties the employee might have

enjoyed as a private citizen. @ Garcetti , 547 U.S. at 421 B 22, 126 S. Ct. at

1960 . Second, if the speaker did not engage in the speech pursuant to official

duties, then we must determine whether the speech touched upon a matter of

public concern. Davis , 518 F.3d at 312 . Third, if the speech does

pertain to a matter of public concern, we apply the Pickering/Connick test

to balance the employee = s interest in expressing his concerns with

the governmental employer = s interest in performing its services

efficiently. Id.

Subsequent cases have further clarified Garcetti = s effect on the Pickering/Connick

test. For example, in Nixon v. City of Houston , the Fifth Circuit Court

of Appeals considered a police officer = s statements to

the media criticizing, among other things, his employer = s high-speed

pursuit policy. 511 F.3d 494 , 496 B 97 (5th Cir.

2007). Some of the statements were made at an accident scene while the officer

was in uniform and on duty; others appeared in magazine articles written by the

officer. Id. In the articles, the officer also A characterized

inner‑city minority residents as > rats, = women with cats

as mentally unstable, homeless people as > criminals, = and children with

problems as > freaks. = @ Id. at 500

n.9.

On appeal, the court held that the statements at the

accident scene were made pursuant to the officer = s employment

responsibilities, and thus, were not subject to First Amendment protection. Id.

at 498 . As the court explained, A the fact that [the

police officer] performed his job incorrectly, in an unauthorized manner, or in

contravention of the wishes of his superiors does not convert his statement . .

. into protected citizen speech. @ Id. at

498 B 99. Although the

court did not determine whether the officer acted pursuant to his professional

duties in writing the magazine articles, it held that the articles were

unprotected under the Pickering test in any event because they brought A > the mission of the

[police department] and the professionalism of its officers into serious

disrepute, = @ thereby undermining citizen confidence in

the department and impairing the performance of its functions. Id. at

500 B 01 (quoting City

of San Diego v. Roe , 543 U.S. 77, 81 , 125 S. Ct. 521, 524 , 160 L. Ed. 2d

410 (2004)). [13]

In reaching this conclusion, the court emphasized that it was A mindful of the

paramilitary structure of the police department and the greater latitude given

their decisions regarding discipline and personnel regulations. @ Id. at

501.

a. Causing

Gang-Related Information to be Posted on CLEO

In their first issue, appellants contend that the trial

court erred in denying their motion for qualified immunity to Perry = s claims arising

from his release of gang-related information for posting to the CLEO website.

According to Perry, this speech was protected by the First Amendment, and thus,

appellants violated his constitutional rights by subjecting him to employment discipline

for engaging in this speech. Appellants assert that this speech is not

protected under Garcetti because it relates to Perry = s employment. We

agree.

Although the parties have not identified the statement in the

record and we do not know its exact content, Perry = s own

characterizations of the statement and the context in which it was made place

it firmly within the scope of his employment responsibilities. For example, in

his petition, Perry repeatedly states that he was A retaliated against

for performing [his] job. @ See, e.g. , Pl. = s Seventh Am.

Pet., & 17 ( A Because [Perry]

sought to properly perform his job, including making relevant and material

communication with appropriate officials, [Perry] was the target of retaliation

by [appellants]. @ ). Activities undertaken in the course of

performing one = s job, even if unauthorized, are conducted pursuant to

official duties. Nixon , 511 F. 3d at 497 B 99 (citing Williams ,

480 F. 3d at 693 ).

We further note that CLEO can be accessed only by law

enforcement personnel who have been given passwords, and Perry could not obtain

a password without a superior = s authorization. He previously sought and

was denied permission to obtain a password to access CLEO directly. Moreover,

the summary-judgment evidence includes Perry = s testimony that

the speech at issue was related to his position as a gang officer performing an

investigation as provided in his job description:

If you look at my job description for the gang officer, it specifically

says that I am to deal with other agencies. So, did I have prior - - I already

had prior permission to - - to deal with other agencies. It was part of my

job. It was part of what I did.

. . .

The event [i.e., the gang violence expected in May 2005] was something

I had heard about. I was in the investigation stage. If you read the content

of what I sent out, it simply was asking for information.

. . .

Again, my job description and - -

and what I understand my - - my job to be and what the policy says is that I -

- if I had evidence of a specific incident then I need to make that appropriate

- - to make that known. I was gathering that inform - - all I had was - - was

minor information at this time when I sent that out, and I was looking for more

confirmation. So, do I - - did I feel it was necessary [to obtain permission

before releasing the information]? No, I was doing what I was supposed to be

doing in that I was trying to gather information to see how valid what I had

heard from another source and what I had been hearing in the district was.

According

to his own testimony, Perry was investigating gang activity and requesting

confirmation of information he learned in his investigation. Although a job

description alone is not dispositive of the scope of an employee = s duties, Perry = s understanding of

his job responsibilities is supported by AISD policies included in the

summary-judgment record. [14]

Because private citizens do not have a right to post

gang-related information to CLEO, there is A no relevant

analogue to speech by citizens who are not government employees. @ Garcetti ,

547 U.S. at 424 , 126 S. Ct. at 1961 . This assessment is unchanged by the fact

that Perry released information to another governmental employee for posting to

the site, thereby accomplishing indirectly what he had been denied permission

to do directly. Appellants produced evidence that Perry = s conduct was

insubordinate in that it circumvented their decision to refuse authorization

for him to access CLEO directly. In addition, they produced uncontroverted

evidence that Perry = s conduct generated ill‑will and

threatened to disrupt the school district = s normal

functioning on the days identified by Perry as posing an increased risk for

gang violence.

In his response to the motion for summary judgment, Perry

stated that he released information for posting on the CLEO website A as a concerned

citizen who is concerned not only about the public welfare, but also as a

citizen concerned about the safety of other law enforcement personnel. @ [15] This statement

is insufficient to bring the communication at issue C i.e., statements

by a gang officer to other law enforcement personnel regarding his

investigation of gang-related activity C within the

protection of the First Amendment. See Davis v. Ector County, Tex. , 40

F.3d 777, 782 (5th Cir. 1994) ( A [A] proper inquiry does not elevate motive

to a determinative factor; instead, we are to examine the form, content, and

context of the statement. @ ). Given the forum in which the speech

occurred, Perry = s inability to access the website directly

without his supervisor = s authorization, the particularized roles

of the speaker and the audience, and the content of the speech as described by

Perry, we conclude that his disclosure of information for posting to the CLEO

website was performed pursuant to his responsibilities as a gang officer, and

as such, is not protected. We therefore agree with appellants = contention that

this speech was not protected by the First Amendment, and we sustain their

first issue as it pertains to this communication.

b. Reporting Appellants = Allegedly

Unlawful Conduct to the Harris County District Attorney

In the remainder of their first issue, appellants contend

the trial court erred in denying them qualified immunity from Perry = s claims arising

from his report to the Harris County District Attorney that appellants

unlawfully removed a citation from Perry = s citation book.

Again, Garcetti dictates that we begin our analysis by determining if

Perry engaged in the speech at issue pursuant to his employment

responsibilities.

Because Perry is a police officer and his speech consisted

of reporting his suspicions of unlawful activity, appellants contend that Perry

engaged in this speech pursuant to his employment. In support of this

argument, appellants emphasize that they were accused of unlawfully removing a

citation. They contend that Perry A only had the

authority to write tickets because he was a police officer; his reporting of

the removal of a ticket, therefore, is necessarily related to [his] employment

as a police officer. @

This argument is without merit. The speech at issue

consists of Perry = s report to the district attorneys = office alleging

that appellants unlawfully tampered with an existing government record; the

identity of the person who created the record is irrelevant.

Appellants also contend that this speech is unprotected

pursuant to Garcetti because Perry communicated his allegations to the

district attorney = s office while at work and in the course

of performing his duties. Perry, however, testified without contradiction that

he communicated with the district attorney = s office via cell

phone, and did not recall using the office telephone for that purpose. Because

appellants = argument relies on facts that are not established in

the record, it cannot support reversal. See Scott , 550 U.S. at B , 127 S. Ct. at

1775 B 76; Tex. R. Civ. P. 166a(c); Green v.

Alford , No. 14-05-00407-CV, B S.W.3d B , B , 2008 WL 2744232,

at *9 (Tex. App. C Houston [14th Dist.] July 15, 2008, no

pet. h.) (op. on en banc reh = g) (noting that an appellate court will

reverse the trial court = s denial of a qualified-immunity

summary-judgment motion A only if the evidence conclusively proves

facts establishing his entitlement to official immunity as a matter of law @ ).

Having concluded that Perry was not acting pursuant to his

employment responsibilities when reporting his suspicions of misconduct to the

district attorney = s office, we proceed to the Pickering/Connick

test and determine whether the speech addressed a matter of public

interest. Some issues are inherently subjects of public concern. Connick ,

461 U.S. at 148 , 103 S. Ct. at 1691 n.8 (racial discrimination) (citing Givhan

v. W. Line Consol. Sch. Dist ., 439 U.S. 410 , 415 B 16, 99 S. Ct. 693 ,

696 B 97, 58 L. Ed. 2d

619 (1979)). The report of unlawful conduct by police officers is one such

issue. Id. at 148, 103 S. Ct. at 1690 B 91 (communications

to inform the public that the employer A was not

discharging its governmental responsibilities in the investigation and

prosecution of criminal cases @ is a matter of public concern); id.

(public has an interest in speech intended A to bring to light

actual or potential wrongdoing or breach of public trust @ on the part of

public employees); Brawner v. City of Richardson, Tex. , 855 F.2d 187 ,

191 B 92 (5th Cir. 1988)

( A The disclosure of

misbehavior by public officials is a matter of public interest and therefore

deserves constitutional protection, especially when it concerns the

operation of a police department . @ ) (emphasis added,

footnote omitted). We therefore conclude, as a matter of law, that the speech

at issue addressed a matter of public concern.

Finally, we must balance (a) the interests of Perry

and the general public in allowing Perry to participate in speech on this

issue, and (b) AISD police department = s legitimate

purpose in A promot[ing] efficiency and integrity in the discharge

of official duties, @ [16] and maintaining A > proper discipline

in the public service. = @ [17] A This involves

whether the speech: (1) was likely to generate controversy and disruption, (2)

impeded the department = s general performance and operation, and

(3) affected working relationships necessary to the department = s proper

functioning. @ Brawner , 855 F.2d at 192 . Significantly,

however, the absence of protection for the kind of speech at issue here would

undermine rather than promote efficiency and integrity. A [I]f the

allegations of internal misconduct are indeed true, [Perry = s] statements

could not have adversely affected the proper functioning of the department

since the statements were made for the very reason that the department was not

functioning properly due to corruption. @ Id. On

this record, the public = s interest in Perry = s speech outweighs

the legitimate interests of his governmental employer; thus, application of the

Pickering/Connick test leads us to conclude that Perry = s speech to the

district attorney = s office was protected by the First

Amendment.

Appellants contend that they nevertheless are entitled to

qualified immunity because they did not violate a clearly established right

protecting Perry = s speech. To be considered clearly

established, A the contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that

right. @ Anderson ,

483 U.S. at 640 , 107 S. Ct. at 3039 . According to appellants, A [t]he act in

question in this case, disciplining a subordinate employee for violating a

policy or procedure, does not constitute a clearly established violation of

[Perry = s] constitutional

rights. @

At the time of these events, however, it was

well-established that a legitimate report of unlawful police conduct is

protected by the First Amendment. See, e.g. , Davis v. Ector County,

Tex. , 40 F.3d 777, 782 (5th Cir. 1994); Brawner , 855 F.2d at 192 ; Lott

v. Andrews Ctr ., 259 F. Supp. 2d 564, 568 (E.D. Tex. 2003) (filing a

legitimate criminal complaint with law enforcement officials constitutes an

exercise of the First Amendment right); see also Wal-Mart Stores, Inc. v.

Rodriguez , 92 S.W.3d 502, 507 (Tex. 2002) ( A A citizen has a

clear legal right to report criminal misconduct to authorities . . . . @ ); Tex. Dep = t of Transp. v.

Needham , 82 S.W.3d 314 , 320 B 21 (Tex. 2002) (clarifying that a report

of an alleged violation of law may be in good faith even though incorrect, if a

reasonable person with the employee = s level of

training and experience would also have believed that a violation had

occurred). The only policy identified by appellants which such speech could

have violated was the policy communicated to Perry by Turner on September 29,

2005: A You are notified

by receipt of this memorandum that you are required to contact an AISD Police

Supervisor prior to contacting any [assistant district attorney] for charges. @ [18]

Such a policy cannot be applied lawfully to authorize

adverse employment action against a public employee A who in good faith

reports a violation of law by the employing governmental entity or another

public employee to an appropriate law enforcement authority. @ See Tex. Gov = t Code Ann. ' 554.002(a)

(Vernon 2004). [19]

To the contrary, section 554.002 is intended to (1) enhance openness in

government by protecting public employees who inform proper authorities of

legal violations, and (2) secure governmental compliance with the law on the

part of those who direct and conduct governmental affairs. Town of Flower

Mound v. Teague , 111 S.W.3d 742, 752 (Tex. App. C Fort Worth 2003,

pet. denied) (op. on reh = g) (citing Upton County v. Brown ,

960 S.W.2d 808, 817 (Tex. App. C El Paso 1997, no pet.) and Tarrant

County v. Bivins , 936 S.W.2d 419, 421 (Tex. App. C Fort Worth 1996,

no writ)). Law enforcement officers are not exempted from the statute = s protections. See

Tex. Gov = t Code Ann. ' 554.002; Harris

County Precinct Four Constable Dep = t v. Grabowski , 922 S.W.2d 954 ,

955 B 56 (Tex. 1996)

(per curiam); Teague , 111 S.W.3d at 752 B 754; see also

United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass = n , 389 U.S. 217,

222 , 88 S. Ct. 353, 356 , 19 L. Ed. 2d 426 (1967) ( A The First

Amendment would, however, be a hollow promise if it left government free to

destroy or erode its guarantees by indirect

restraints . . . . @ ). Moreover, AISD

expressly incorporated the A whistleblower protection @ of section

554.002 among the employee rights and privileges enumerated in its printed

policies.

Because Turner and Bonaparte failed to demonstrate their

entitlement to official immunity for Perry = s claims arising

from his report of appellants = suspected misconduct, we overrule the

remainder of appellants = first issue as it pertains to this

speech.

2. Claims Arising

from Alleged Violations of Fourteenth Amendment Rights

Appellants next challenge the trial court = s failure to grant

summary judgment against Perry on his claim that appellants took adverse

employment action against him in violation of his Fourteenth Amendment right to

due process. We begin our analysis by determining whether Perry was deprived

of a protected interest, and, if so, what process was his due. See Logan v.

Zimmerman Brush Co. , 455 U.S. 422, 428 , 102 S. Ct. 1148, 1154 , 71 L. Ed.

2d 265 (1982); Univ. of Tex. Med. Sch. at Houston v. Than , 901 S.W.2d

926, 929 (Tex. 1995).

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. Alford

v. City of Dallas , 738 S.W.2d 312, 316 (Tex. App. C Dallas 1987, no

writ). Property interests also can be created by state law. Town of Castle

Rock, Colo. v. Gonzales , 545 U.S. 748, 756 , 125 S. Ct. 2796, 2803 , 162 L.

Ed. 2d 658 (2005). In their motion for traditional summary judgment regarding

Perry = s Fourteenth

Amendment claim for violation of his due process rights, Turner and Bonaparte

asserted that Perry was an at-will employee with no property interest in

continued employment. Perry responded that he had a protected property

interest in continued employment pursuant to Texas Government Code sections

614.021 B .023, which were

expressly adopted in AISD = s policy manual and which Turner and

Bonaparte had previously applied to Perry. See Tex. Gov = t Code Ann. '' 614.021 B .023 (Vernon 2004

and Supp. 2008).

Section 614.022 of the Texas Government Code, entitled A Complaint to be in

Writing and Signed by Complainant, @ provides, A To be considered

by the head of a state agency or by the head of a fire department or 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, entitled A Copy of Complaint to be Given to Officer

or Employee, @ further provides:

(a) A copy of a signed complaint against a law

enforcement officer of this state . . . 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.

Id. ' 614.023. [20]

We previously construed these statutes and concluded that the complaint must be

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

Guthery v. Taylor , 112 S.W.3d 715 , 721 B 23 (Tex. App. C Houston [14th

Dist.] 2003, no pet.). Here, state law and AISD policy [21]

created a property interest: in the absence of complaints that were signed,

delivered, investigated, and supported by evidence, Perry had a legitimate

expectation of continued employment secured by sections 614.021 B 023 of the Texas

Government Code.

Having determined that Perry had a protected property

interest, we must now identify the process required to protect that interest.

Generally, due process is measured by a flexible standard that depends on the

practical requirements of the circumstances. Mathews v. Eldridge , 424

U.S. 319, 334 , 96 S. Ct. 893, 902 , 47 L. Ed. 2d 18 (1976). This standard

includes three factors: (1) the private interest that will be affected by

the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and (3) the government = s interest,

including the function involved and the fiscal and administrative burdens that

the additional or substitute procedural requirement would entail. Id. at

335 , 96 S. Ct. at 903 .

According to appellants, the grievance process provided

Perry with any due process to which he was entitled. We cannot agree that this

substitute procedure protected Perry = s due process

rights. By enacting sections 614.021 B 023, of the

Government Code, the State provided covered employees with procedural

safeguards to reduce the risk that adverse employment actions would be based on

unsubstantiated complaints. Moreover, the State determined that the value of

these protections outweighs the fiscal and administrative burdens incurred by

complying with statutory requirements. In contrast, the summary- judgment

evidence demonstrates that the procedures appellants followed impaired Perry = s ability to

investigate or defend against the complaints made against him.

Rather than requiring complaints of alleged misconduct to

be signed by the victim, appellants accepted and acted upon complaints that did

not identify the true complainant. Instead, these complaints expressed the

conclusions of other peace officers based on general allegations of

unidentified people. For example, Officer Wayne Cox wrote,

In speaking with fellow officers,

who wish to remain anonymous, I feel that Officer Troy Perry is threatening to

undermine your authority as chief and erode the good order and discipline of

the department. I respectfully request that he not be allow[ed] to interact

with students at the Elsik campus as he tends to incite or inflame already

volatile situations by his demeanor. . . . I opine that

Officer Perry should never have any contact with the public as he is the

antithesis of a professional police officer.

Cox = s partner, Officer

William Britton, similarly wrote,

It has been brought to my attention

by my fellow officers that Officer Perry has been speaking ill of the

department. I have been with Officer Perry on several occassions [sic] at

Elsik and I feel that his actions with the students at Elsik are not that of a

professional police officer. I have observed him shout, yell and degrade

students with whom he was interacting.

Officer

Karen Meier emailed Bonaparte that the A morale in the

department and overall tension level among officers is very strained @ and A most of this could

be avoided if Officer Perry could keep whatever problems he has with the

department and supervisors to himself and not drag everyone into it. @

Deposition testimony demonstrated further problems with the

procedure followed by appellants. Benitez testified that one of her job

responsibilities requires her to investigate whether accusations are verifiable

and truthful. Nevertheless, there was no investigation concerning Perry = s release of

information for posting on the CLEO website, and she does not know that any

AISD employee, other than law enforcement personnel, saw the posting. She

further agreed that there is A nothing in writing, no dates, no names and

no way to investigate @ the allegations against Perry. Benitez

conceded that she did not develop enough specific data to allow Perry to

investigate A and give his side of the case, @ and stated her

opinion that Perry could be terminated A for any reason or

no reason. @ Rather than investigating, Benitez relied on

statements concerning unidentified students, including statements from Turner

and Bonaparte. Turner, however, testified that he does not remember any

specific incident in which he observed Perry behaving inappropriately with

students, and Bonaparte asserted his rights under the Fifth Amendment and

refused to answer questions concerning this suit. [22]

In sum, appellants = failure to follow statutory procedure

magnified the risk that adverse employment action would be taken based on

unsubstantiated complaints. Cf. Tex.

Gov = t Code Ann. '' 614.022, 614.023 [23]

(requiring complaints against police officers to be written, signed,

investigated, and supported by evidence if they are used as the basis for

adverse employment action). On this record, we cannot conclude that the trial

court erred in denying appellants = motion for

summary judgment regarding Perry = s Fourteenth

Amendment claims.

B. Official

Immunity

In their second issue, appellants argue that they are

entitled to official immunity from Perry = s claims of

slander, [24]

and thus, the trial court erred in failing to grant summary judgment on this

basis. Official immunity under common law is based on the need for public

servants A to act in the public interest with confidence and

without the hesitation that could arise from having their judgment continually

questioned by extended litigation. @ Ballantyne v.

Champion Builders, Inc ., 144 S.W.3d 417, 424 (Tex. 2004). It is an

affirmative defense barring state law claims against a governmental employee = s performance

(1) of discretionary duties, (2) within the scope of the employee = s authority,

(3) provided that the employee acts in good faith. Id . at 422; Univ.

of Houston v. Clark , 38 S.W.3d 578 , 580 B 81 (Tex. 2000);

City of Lancaster v. Chambers , 883 S.W.2d 650, 653 (Tex. 1994). The

doctrine is based on the theory that the threat of liability will make public

officials unduly timid in carrying out their official duties, and effective

government will be promoted if officials are freed of the costs of vexatious

and frivolous litigation. Westfall v. Erwin , 484 U.S. 292, 295 , 108 S.

Ct. 580, 583 , 98 L. Ed. 2d 619 (1988), superseded by statute on other

grounds , 28 U.S.C. '' 2671 B 2679 (1989 Supp.),

as recognized in United States v. Smith , 499 U.S. 160 , 111 S. Ct. 1180 , 113

L. Ed. 2d 134 (1991). Thus, immunity from state-law claims is intended to

insulate essential governmental functions from the harassment of litigation and

remove the deterrent to public service posed by the threat of heavy personal

liability for errors in judgment. See Ballantyne , 144 S.W.3d at 424 ; Kassen

v. Hatley , 887 S.W.2d 4, 8 (Tex. 1994).

On appeal, the parties have focused their arguments on the

element of good faith. To determine whether a public official has acted in good

faith, we look to the objective standard adopted in Chambers . 883 S.W.2d

at 656 . The summary-judgment movant must produce evidence that a reasonably

prudent official, under the same or similar circumstances, could have believed

that his conduct was justified based on the information he possessed when the

conduct occurred. Wadewitz v. Montgomery , 951 S.W.2d 464, 467 (Tex.

1997).

Appellants, however, failed to produce evidence that a

reasonable officer in the same or similar circumstances could have believed

that statements such as those made by Turner and Bonaparte were justified. In

their affidavits in support of summary judgment, both Turner and Bonaparte

stated:

It is within my job duties to report

to . . . administration, and specifically the Human

Resources Department, what I believe, using my discretion, to be relevant in

determining a subordinate = s employment or disciplinary

future.

This was the case when reporting to the administration regarding Troy

Perry and his job performance. I made the determination, using my discretion

and judgment, as to what would be relevant to the administration in making a

decision as to Troy Perry = s employment with Alief or any

disciplinary measure taken. I performed these discretionary duties believing

that my reporting to the administration as to Troy Perry was in the best

interest of the District and believing what I reported to be true.

I received reports from various administrators within the District that

Troy Perry = s behavior, with respect to his

interactions with students, parents, and faculty, was inappropriate. I used my

judgment and found these reports to be reliable and in the interest of Alief

and its students and faculty, I reported my findings as well as my observations

to . . . Human Resources. This was done without

malice. . . .

It is not my understanding that my

issuance of disciplinary measures, such as my issuance of a verbal or written

directive; the assignment of a growth plan; or even recommendation of

termination, for violation of District or department policy or procedures, in

any way violates the Constitutional rights of any officers under my

supervision.

In

effect, each appellant states that he felt justified in making the statements

and reports at issue regarding Perry = s conduct;

however, in analyzing claims of official immunity, A consideration of subjective

evidence of the good faith element of official immunity is inappropriate. @ Ballantyne ,

144 S.W.3d at 419 (emphasis added).

Because Turner and Bonaparte failed to produce evidence

that a reasonably prudent officer, in the same or similar circumstances, could

have believed that their representations of Perry = s conduct were

justified, the trial court properly denied summary judgment on this ground.

We therefore overrule appellants = second issue.

V. Conclusion

We conclude that Perry did not engage in protected speech

when he released information for publication to a law-enforcement website.

Consequently, appellants are entitled to qualified immunity against Perry = s claims that they

violated his First Amendment rights in connection with this communication. We

therefore reverse the trial court = s order and render

judgment that appellants are immune from liability arising from adverse

employment actions taken in response to Perry = s release of

information for publication to the CLEO website. In all other respects, we

affirm the trial court = s order denying summary judgment, and we

remand the case for further proceedings consistent with this opinion.

/s/ Eva M. Guzman

Justice

Panel consists of

Chief Justice Hedges and Justices Guzman and Brown.

[1] Perry attributes the delay in entering the charges

into the computer system to school closures in connection with Hurricane Rita.

[2] Perry filed another grievance on November 28, 2005, and an unsuccessful

grievance hearing was held on January 19, 2006.

[3] On appeal, the parties do not address Perry = s claim for intentional infliction of emotional

distress or appellants = contention that Perry failed to exhaust

administrative remedies.

[4] The plurality opinion may be taken to state the

holding of the Court. As J. Souter explained in a concurring opinion, a

majority of the Court agreed that, in the absence of pretext, employers whose

conduct survives the plurality = s

reasonableness test cannot be held constitutionally liable. Waters ,

511 U.S. at 685 B 86, 114 S. Ct. at 1893 (Souter, J., concurring). A

different majority agreed that employers whose conduct fails the plurality = s reasonableness test have violated the Free Speech

Clause. Id.

[5] Id. at 148, 103 S. Ct. at 1690 .

[6] Id. at 148 , 103 S. Ct. at 1691 .

[7] Id. at 152 B 53,

103 S. Ct. at 1693 .

[8] Id. at 151 , 103 S. Ct. at 1692 .

[9] Id. at 148 , 103 S. Ct. at 1690 B 91.

[10] Id.

[11] Although the events in this case predate Garcetti ,

we apply its threshold requirement when determining whether Perry engaged in

protected speech. See Harper v. Va. Dep = t of Taxation ,

509 U.S. 86, 97 , 113 S. Ct. 2510, 2517 , 125 L. Ed. 2d 74 (1993) (explaining

that the Supreme Court = s announcement of a rule of federal law applies to all

open cases and events, regardless of whether such events predate or postdate

the Court = s announcement of the rule). We do not, however,

consider Garcetti as part of the law that was A clearly established @ at

the time appellants are alleged to have violated Perry = s constitutional rights. See Hope , 536 U.S. at 741 , 122 S. Ct. at 2516 (describing the test for

ascertaining the A clearly established @

law at the time of the alleged violations).

[12] That the employee = s

speech concerns facts learned while working is not dispositive. See

Charles v. Grief , 522 F.3d 508 , 513 B 14

(5th Cir. 2008) (Texas Lottery Commission employee = s allegations of Commission misconduct, made to

members of the Texas legislature with oversight over the Commission, is

protected even though the speech concerned facts learned at work).

[13] In City of San Diego , the Supreme Court held

that the police department had a legitimate and substantial interest in

preventing one of its officers from selling pornographic videos of himself on

eBay where the officer identified himself as a law enforcement officer, appeared

in uniform, and performed indecent acts. Nixon , 511 F.3d at 500 B 01 (citing City of San Diego , 543 U.S. at 81 ).

[14] For example, a policy entitled A Alief ISD Policy CKE (Legal) @ states that a A peace

officer may provide assistance to another law enforcement agency . . . . @

[15] In Perry = s

Seventh Amended Petition, however, he alleged that he A was reprimanded even though the AISD Gang Officer = s stated responsibilities included protecting AISD

students and personnel, and the responsibility to work with other agencies to

track, monitor and document criminal gang sets, affiliates and associates. @

[16] Arnett v. Kennedy , 416 U.S. 134, 168 , 94 S.

Ct. 1633, 1651 , 40 L. Ed. 2d 15 (1974) (Powell, J., concurring).

[17] Connick , 461 U.S. at 150 B 51, 103 S. Ct. at 1692 (quoting Ex parte Curtis ,

106 U.S. 371 , 1 S. Ct. 381, 384 , 27 L. Ed. 232 (1882)).

[18] During his deposition, Turner testified that it was

part of AISD police department = s A procedure @ to

obtain prior approval from a supervisor before disseminating A juvenile information and information that could cause

alarm. @ Turner denied that this was a A policy. @

[19] An appropriate law enforcement authority includes

governmental entities that the employee in good faith believes are authorized

to investigate or prosecute a violation of criminal law. Id. ' 554.002(b)(2).

[20] Act of May 16, 1969, 61st Leg., R.S., ch. 407, ' 1, 1969 Tex. Gen. Laws 1333 , 1333 B 34 (formerly codified as Vernon = s Ann. Civ. St. art. 6252-20, eff. June 2, 1969), recodified

by Act of May 4, 1993, 73rd Leg., R.S., ch. 268, ' 1, 1993 Tex. Gen. Laws 583 , 678 B 79, amended by Act of May 19, 2005, 79th Leg.,

R.S., ch. 507, ' 1, 2005 Tex. Gen. Laws 1394 , 1394, eff. Sept. 1,

2005.

[21] See County of Dallas v. Wiland , 216 S.W.3d

344, 348 (Tex. 2007) (stating that at-will employment of public employees may

be modified by agreement with the employer, as in a personnel manual). Here,

the AISD police force expressly adopted the state statutes as its own policy.

[22] Cf. Fudge v. Haggar , 621 S.W.2d 196 , 197 B 98 (Tex. App. C Texarkana

1981, writ ref = d n.r.e.) (holding that a written,signed complaint by

an internal investigator concerning police officer = s improper release of prisoner, supported by

affidavits from A pretrial release employees, @ fulfilled statutory requirements because A the entire investigation began within the police

department @ ).

[23] To the contrary, Benitez testified that she did not

investigate the complaints.

[24] Perry = s

slander claim is primarily based on appellants = representations that he engaged in A inappropriate

interactions with students. @