Opinion

City of Plainview Texas, William Mull, in His Official Capacity as Chief of Police of the City of Plainview Police Department, and Ken Coughlin, Capacity as Chief of Police of the City of Plainview Police Department v. Korey Ferguson

Court: Court of Criminal Appeals of Texas
Filed: Feb 18, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.0%

describing the de novo standard of review

How later courts described this case

describing the de novo standard of review
describing the appellate court’s role in a de novo review for a pure question of law
“The First Amendment would, however, enforcement agency, the complaint must be: (1) in writing; be a hollow promise if it left government free to destroy and (2
decided with Tennessee v. Garner

Written by the judges who cited it.

The opinion

ACCEPTED

07-14-00405-CV

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

2/18/2015 4:43:44 PM

Vivian Long, Clerk

APPELLATE NO. 07-14-00405-CV

IN THE COURT OF APPEALS FILED IN

7th COURT OF APPEALS

FOR THE SEVENTH JUDICIAL DISTRICTAMARILLO, TEXAS

AMARILLO, TEXAS 2/18/2015 4:43:44 PM

VIVIAN LONG

CLERK

CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT

Appellants,

KOREY FERGUSON

Appellee.

Appeal From No. A38274-1112

64 District Court, Hale County, Texas

The Honorable Robert W. Kinkaid, Jr.

BRIEF OF APPELLANTS

CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT

Sprouse Shrader Smith PLLC

Mark D. White, Texas State Bar No. 21317900

mark.white@sprouselaw.com

Malerie T. Anderson, Texas State Bar No. 24087102

malerie.anderson@sprouselaw.com

701 S. Taylor, Suite 500

Amarillo, Texas 79101

Phone: (806) 468-3300

Fax: (806) 373-3454

and

City of Plainview

Leslie Spear, Texas State Bar No. 21202700

lpearce@ci.plainview.tx.us

901 Broadway Street

Plainview, Texas 79072

Phone: (806) 296-1127

Fax: (806) 296-1125

ATTORNEYS FOR APPELLANT

CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT

February 18, 2015

Oral Argument Requested

APPELLATE NO. 07-14-00405-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH JUDICIAL DISTRICT

AMARILLO, TEXAS

CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW

POLICE DEPARTMENT

Appellants,

KOREY FERGUSON

Appellee.

LIST OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(A), Appellants, the City of Plainview Texas,

William Mull, In His Official Capacity as Chief of Police of the City of Plainview

Police Department, and Ken Coughlin, In His Official Capacity as Chief of Police

of the City of Plainview Police Department, certify that the following is a complete

list of the names and addresses of the parties and their counsel:

Parties Counsel

Appellants City of Plainview Texas, SPROUSE SHRADER SMITH PLLC

William Mull, In His 701 S. Taylor, Suite 500

Official Capacity as P.O. Box 15008

Chief of Police of the Amarillo, Texas 79105-5008

City of Plainview Police Mark D. White, Esq.

Department, and Ken Malerie T. Anderson, Esq.

Coughlin, In His and

Official Capacity as City of Plainview

iii

Chief of Police of the 901 Broadway Street

City of Plainview Police Plainview, Texas 79072

Department Leslie Spear, Esq.

Appellee Korey Ferguson Texas Municipal Police Association

6200 La Calma Drive, Suite 200

Austin, Texas 78752

Randall C. Doubrava, Esq.

and

DeShazo & Nesbitt, L.L.P.

809 West Avenue

Austin, Texas 78701

Rachel Noffke, Esq.

and

Law Office of Lance F. Wyatt, PLLC

141 Countryside Court, Suite 150

Southlake, Texas 76092

Lance F. Wyatt, Esq.

REQUEST FOR ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39.7, Appellants, the City of Plainview Texas,

William Mull, In His Official Capacity as Chief of Police of the City of Plainview

Police Department, and Ken Coughlin, In His Official Capacity as Chief of Police

of the City of Plainview Police Department request permission to make oral

arguments upon submission of this cause to the Court of Appeals.

TABLE OF CONTENTS

Page

LIST OF PARTIES AND COUNSEL..................................................................... iii

REQUEST FOR ORAL ARGUMENT ................................................................... iv

INDEX OF AUTHORITIES................................................................................... vii

STATEMENT OF THE CASE ................................................................................11

ISSUES PRESENTED.............................................................................................13

1. The Trial Court erred in determining reinstatement is mandatory for

noncompliance with Texas Government Code section 614.023. .............13

2. The Trial Court erred in ordering reinstatement because the

evidence adduced at trial is insufficient to support reinstatement. ..........13

3. The Trial Court abused its discretion by ordering the City to

reinstate Korey Ferguson to his former position at the rate of pay at

the time of dismissal. ................................................................................13

STATEMENT OF FACTS ......................................................................................14

SUMMARY OF THE ARGUMENT ......................................................................22

BRIEF OF THE ARGUMENT ................................................................................24

I. STANDARD OF REVIEW ..........................................................................24

II. THE TRIAL COURT ERRED IN DETERMINING

REINSTATEMENT WAS MANDATORY FOR NONCOMPLIANCE

OF TEXAS GOVERNMENT CODE SECTION 614.023. .........................26

III. THE TRIAL COURT ERRED IN ORDERING REINSTATEMENT

THE BECAUSE EVIDENCE ADDUCED AT TRIAL IS

INSUFFICIENT TO SUPPORT REINSTATEMENT. ...............................30

A. Legal Insufficiency ...................................................................... 30

B. Factual Insufficiency ................................................................... 34

IV. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING

APPELLANT TO REINSTATE APPELLEE TO HIS FORMER

POSITION AT THE RATE OF PAY AT THE TIME OF DISMISSAL. ...36

A. The Trial Court’s Order to Reinstate Appellant Is Against Public

Policy .......................................................................................... 36

V. THE REMEDY OF REINSTATEMENT DOES NOT FIT THE

CIRCUMSTANCES PRESENTED .............................................................40

CONCLUSION AND PRAYER .............................................................................45

CERTIFICATE OF SERVICE ................................................................................47

CERTIFICATE OF COMPLIANCE .......................................................................48

APPENDIX ..............................................................................................................49

INDEX OF AUTHORITIES

Page

Cases

Baca v. City of Dallas,

796 S.W.2d 497 (Tex. App.—Dallas 1990) ..................................................44

Barber v. Colorado ISD,

901 S.W.2d 447 (Tex. 1995) .........................................................................24

Bowie Mem’l Hosp. v. Wright,

79 S.W.2d 48 (Tex. 2002) ...................................................................... 26, 36

Bracey v. City of Killeen,

417 S.W.3d at 110 .................................................................................. 29, 42

Cain v. Bain,

709 S.W.2d 175 (Tex. 1986) .................................................................. 25, 34

City of DeSoto v. White,

288 S.W.3d 389 (Tex. 2009) ...................................................... 28, 29, 42, 43

City of Keller v. Wilson,

168 S.W.3d 802 (Tex. 2005) ............................................................ 25, 31, 33

City of Pasadena v. Smith,

292 S.W.3d 14 (Tex. 2009) .................................................................... 42, 43

Cleveland Brd. of Educ.v. Loudermill,

470 U.S. 532, 538 (1985) ..............................................................................44

Croucher v. Croucher,

660 S.W.2d 55 (Tex. 1983) .................................................................... 25, 34

El Paso Nat. Gas Co. v. Minco Oil & Gas, Inc.,

8 S.W.3d 309 (Tex. 1999) .............................................................................24

ERI Consulting Engineers, Inc. v. Swinnea,

318 S.W.3d 867 (Tex. 2010) .........................................................................41

Garza v. Alviar,

395 S.W.2d 821 (Tex. 1965) .................................................................. 26, 35

vii

Gooch v. Am. Sling Co.,

902 S.W.2d 181(Tex. App.—Fort Worth 1995, no writ) ....................... 26, 34

Guthery v. Taylor,

112 S.W.3d 715 (Tex. App.—Houston [14th Dist.] 2003) .................... 27, 28

Helena Chem. Co. v. Wilkins,

47 S.W.3d 486 (Tex. 2001) ...........................................................................28

Hinds v. Slagel,

Civ. A. No. 3:00-cv-2372-D, 2001 WL 548906, *1 (N.D. Tex. May 18,

2001) ..............................................................................................................19

In re Doe,

19 S.W.3d 249 (Tex. 2000) ...........................................................................26

In re Southwest Bell Telephone Co., L.P.,

226 S.W.3d 400 (Tex. 2007) .........................................................................39

Kentucky v. Graham,

473 U.S. 159 (1985).......................................................................................19

Marathon Corp. v. Pitzner,

106 S.W.3d 724 (Tex. 2003) ............................................................ 25, 31, 33

Maritime Overseas Corp. v. Ellis,

971 S.W.2d 402 (Tex. 1998) .................................................................. 26, 35

Mayhew v. Town of Sunnyvale,

964 S.W.2d 922 (Tex. 1998) .........................................................................24

McAshan v. Cavitt,

149 Tex 147 ...................................................................................................27

McMillin v. State Farm Lloyds,

180 S.W.3d 183 (Tex. App.—Austin 2005, pet. denied) ....................... 26, 34

Nelson v. City of Dallas,

278 S.W.3d 90 (Tex. App.—Dallas 2009) ....................................... 39, 40, 44

Playboy Enters. v. Editorial Caballero, S.A. de C.V.,

202 S.W.3d 250 (Tex. App.—Corpus Christi 2006, pet. denied) .......... 25, 34

viii

Quick v. City of Austin, 7 S.W.3d

109 (Tex. 1998) ...................................................................................... 24, 31

Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co.,

766 S.W.2d 264 (Tex. App.—Amarillo 1988, writ denied)............. 25, 34, 35

Raw Hide Oil & Gas, Inc.,

766 S.W.2d at 275 .........................................................................................30

Ray v. Farmers State Bank of Hart,

576 S.W.2d 607 n.1 (Tex. 1979) ...................................................................27

Serv. Corp. v. Guerra,

348 S.W.3d 221 (Tex. 2011) ............................................................ 25, 31, 33

Turner v. Perry,

278 S.W.3d 806 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) .......28

Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) .................................................................. 26, 36

Statutes

Tex. Civ. Prac. & Rem. Code § 51.012 ...................................................................11

Tex. Const., art. XI at § 5 .................................................................................. 37, 44

TEX. GOVT. CODE § 614.021 ............................................................................. 11, 16

Tex. Govt. Code § 614.022 ............................................................................... 11, 16

Tex. Govt. Code § 614.023 ................................................................... 11, 16, 31, 40

TEX. LOC. GOVT. CODE § 51.071 ...................................................................... 37, 44

Other Authorities

H.B. 639,

79th Leg. Sess. (Tex. 2005), HOUSE RESEARCH ORG. BILL ANALYSIS .........28

Powers of the City;

Tex. Const., art. XI, § 5 (Vernon’s Supp. 2014) ...........................................36

Texas Local Government Code,

Chapter 143 (Vernon’s 2008) .......................................................................36

STATEMENT OF THE CASE

This is an appeal from the Trial Court’s Final Judgment signed August

20, 2014, in favor of Plaintiff Korey Ferguson, pursuant to Tex. Civ. Prac. &

Rem. Code § 51.012. The underlying suit was brought by Korey Ferguson

(“Appellee”), against the City of Plainview Texas, William Mull, In His

Official Capacity as Chief of Police of the City of Plainview Police Department,

and Ken Coughlin, In His Official Capacity as Chief of Police of the City of

Plainview Police Department (the “City” or “Appellants”) based on a violation

of Tex. Govt. Code § 614.021, 614.022, and 614.023. C.R. 14–20; 234–44.

After a bench trial on the merits, the Honorable Judge Kinkaid issued a

letter decision holding that Appellants did not comply with the mandates as

outlined in Texas Government Code, Section 614.023(a) and (b) and rendered

judgment in favor of Korey Ferguson and ordered Appellants to reinstate Korey

Ferguson to his position as a police officer with the City of Plainview, Texas, at

the rate of pay at the time of dismissal. C.R. 300–01, 331–33. Appellants

requested Findings of Fact and Conclusions of Law. C.R. 335–37. Appellants

also filed a Motion to Modify the Judgment as to reinstatement and a Motion

for New Trial. C.R. 338–41; 342–44. The Court ultimately adopted Korey

Ferguson’s proposed Findings of Fact and Conclusions of Law. C.R. 345–46;

350, 355–63.

The City of Plainview Texas, William Mull, In His Official Capacity as

Chief of Police of the City of Plainview Police Department, and Ken Coughlin,

In His Official Capacity as Chief of Police of the City of Plainview Police

Department, timely filed their notice of appeal. C.R. 370–72.

ISSUES PRESENTED

1. The Trial Court erred in determining reinstatement is mandatory for

noncompliance with Texas Government Code section 614.023.

2. The Trial Court erred in ordering reinstatement because the evidence

adduced at trial is insufficient to support reinstatement.

3. The Trial Court abused its discretion by ordering the City to reinstate

Korey Ferguson to his former position at the rate of pay at the time of

dismissal.

STATEMENT OF FACTS

This case arises out of the City’s failure to provide Amber Washington’s

signed complaint against Korey Ferguson to him within a reasonable time after

she filed the complaint and before disciplinary action was taken; thus, not

complying with comply Texas Government Code Sections 614.023 (a) and (b).

C.R. 355–63. Ferguson claimed he was terminated from the City of Plainview,

Texas, Police Department based on Amber Washington’s written complaint,

that he did not receive a physical copy of the signed complaint within a

reasonable time, and was terminated before he was provided this piece of paper.

C.R. 14–20; 234–44. For the City’s noncompliance with the statute, Korey

Ferguson requested the Trial Court issue a writ of mandamus and injunction

against the City for disciplining Korey Ferguson for the Amber Washington

complaint in the future and attorney’s fees. 1 C.R. 355–366, at 360 ¶¶ 37, 38.

Korey Ferguson also requested that the Trial Court reinstate him to his previous

position as police officer with the same seniority level and rate of pay at the

time the City of Plainview, Texas, Police Department terminated his

employment. R.R. Vol. 5, p. 70, l. 24–p. 71, l. 5; C.R. 234–44.

On February 17, 2011, Korey Ferguson was a peace officer on duty for

the City of Plainview, Texas Police Department and was called to the Plainview

Of all of the relief Ferguson requested and the Trial Court ordered, in this appeal the City

only challenges the order to reinstate Ferguson as a City of Plainview, Texas, police officer.

Police Department lobby to address Amber Washington’s domestic concerns.

R.R. Vol. 5, p. 17, l. 19–p. 18, l. 10. A confrontation erupted between Korey

Ferguson and Amber Washington. R.R. Vol. 5, p. 20, l. 9–p. 2, ln. 8. The

incident escalated and Amber Washington was “throw[n] . . . onto the floor and

. . . charg[ed] . . . with disorderly conduct when there was no one even in the

building.” R.R. Vol. 5, p. 78, l. 13–p. 79, l. 12. Korey Ferguson clearly

violated Amber Washington’s rights when he used excessive force and put

Amber Washington in jail. R.R. Vol. 5, p. 19, l. 2–5; p. 60, l. 23–p. 61, l. 5

(Ferguson acknowledged that other people could view his conduct on the video

recording that night and conclude it was improper.); R.R. Vol. 5, p. 78, l. 13–p.

79, l. 12. The following day, Amber Washington made a verbal complaint to

the Plainview Police Department against Korey Ferguson; the complaint was

later documented in writing as a formal complaint. R.R. Vol. 3, p. 103, l. 15–p.

104, l. 17, l. 21–24; R.R. Vol. 5, p. 65, l. 24–p. 66, l. 2; C.R. 355–363, at 356

¶ 7.

I. As part of the investigation, on February 23, 2011, the City of

Plainview Police Department asked Korey Ferguson to provide a

written memo about the Amber Washington arrest. R.R. Vol. 5, p.

24, l. 8–p. 25, l. 11; C.R. 355–63, 356 ¶ 10. At this time, the City

had not told Korey Ferguson he was under investigation based on a

complaint filed by Amber Washington. 2 R.R. Vol. 3, p. 35, l. 25–

p. 36, l. 3; Vol. 5, p. 25, l. 16–p. 26, l. 8; C.R. 355–363, at 356 ¶ 9.

The City of Plainview Police Department’s investigation

determined there was sufficient evidence to support an allegation

of misconduct. R.R. Vol. 5, p. 28, l. 1–p. 29, l. 23; C.R. 300–01;

355–63, at 356, ¶ 10.

On March 9, 2011, Chief of Police William Mull terminated Korey

Ferguson from the City of Plainview, Texas, Police Department. C.R. 355–363,

at 356 ¶ 11. The Trial Court’s Findings of Fact state that Korey Ferguson did

not actually receive a copy of Amber Washington’s written complaint prior to

his termination from the Police Department.3 R.R. Vol. 5, p. 56, l. 7–10; C.R.

300–01, C.R. 355–363, at 357 ¶ 15; TEX. GOVT. CODE § 614.023(a) and (b).

Although Ferguson did not receive the actual piece of paper within a reasonable

time or before he was terminated, only days after Amber Washington filed her

complaint the City asked Ferguson to prepare a memo about the Amber

Washington incident. R.R. Vol. 5, p. 24, l. 18–p. 25, l. 11. In fact, Korey

Ferguson testified that Chief Mull “reached over the desk and handed [the

complaint] to [him] and [he] read it and started kind of skimming through it”

However, the Texas Government Code does not require that the officer be informed that he

is “under investigation,” only that the City provide the officer a copy of the written complaint

before taking disciplinary action. TEX. GOVT. CODE § 614.022 –.023.

Notably, the City does not challenge this finding on appeal. Rather, the City’s finding is

limited to the improper remedy of reinstatement under these circumstances.

but he gave the document back to Chief Mull and was not provided a copy for

his attorney. R.R. Vol. 5, p. 31, l. 12–p. 32, l. 5. It is clear that Ferguson was

aware that Amber Washington filed a written complaint about his excessive

force taking her down to the floor on February 17, 2011, and had ample

opportunity to consult a lawyer about the incident. R.R. Vol. 5, p. 31, l. 12–p. 32,

l. 5; p. 65, l. 10–p. 66, l. 3.

Pursuant to the City of Plainview, Texas’ personnel procedures, Korey

Ferguson appealed his termination to the city grievance committee and had a

panel chosen in accordance with the City personnel procedures 4 to review the

Amber Washington incident, including the video from the lobby that night.

R.R. Vol. 5, p. 63, l. 8–p. 64, l. 12. The hearing before the committee at which

Korey Ferguson was represented by legal counsel and given the opportunity to

argue and cross-examine witnesses, including Amber Washington herself lasted

“all day”. R.R. Vol. 5, p. 6, l. 3–14; l. 24–p. 10, l. 8; p. 11, l. 12–16, 22–p. 12, l.

1; p. 63, l. 8–p. 64, l. 12; p. 67, l. 2–7. The committee unanimously upheld the

decision to terminate Korey Ferguson. Id. Korey Ferguson appealed to the

City Manager who reviewed the circumstances and agreed with the committee’s

See City of Plainview Personnel Policy at Part X, Section 10.5.D. Employee Grievance

Committee detailing the procedure for reviewing employee discipline and indicating the

committee is comprised of two director and supervisors specifically trained to handle

disciplinary matters.

decision to terminate his employment. R.R. Vol. 5, p. 11, l. 12–16, 22–p. 12, l.

1; p. 67, l. 2–7.

Aside from the overwhelming evidence that Korey Ferguson’s

inappropriate conduct amounted to excessive force against Amber Washington

and warranted his termination as a police officer, Korey Ferguson does not

believe he did one single thing wrong. C.R. 355–63, 356 ¶ 10; R.R. Vol. 5, p.

60, l. 12–22. Korey Ferguson refuses to take responsibility for any bad

judgment, bad conduct, use of excessive force, or lack of good decision-making

for the Amber Washington incident. R.R. Vol. 5, p. 60, l. 12–22. Notably,

when given the opportunity Korey Ferguson did not testify that upon

reinstatement he would amend his behavior in any way; thus, revealing that the

treatment of Amber Washington could happen again to another unprovoked

citizen in the future.

Korey Ferguson testified he is eligible to return to work because his

TCLEOSE training is up to date and requested reinstatement as a remedy for

the City’s noncompliance with Texas Government Code Sections 614.023(a)

and (b). R.R. Vol. 5, p. 70, l. 24–p. 71, l. 10; C.R. 234–44. Former Police

Chief William Mull 5 testified that reinstatement of Korey Ferguson would not

Chief William Mull retired from Chief of Police after Korey Ferguson’s termination date

and prior to the date of trial. Chief Kenneth Coughlin replaced Mull in April 2014 and Korey

Ferguson sued Coughlin in his official capacity as the Chief of Police for the City of

be proper considering the circumstances surrounding his termination. R.R. Vol.

4, p. 73, l. 21–p. 74, l. 11; p. 78, l. 16–22; p. 79, l. 7–p. 80, l. 13. Chief Mull

testified that Korey Ferguson’s misconduct on February 17, 2011, “show[ed]

more or less a lack of experience and a lack of expertise.” R.R. Vol. 4, p. 73, l.

21–p. 74, l. 11. Most disconcerting to the former Chief of Police was the

incredibly short time frame from the time Amber Washington requested

assistance and Korey Ferguson threw her to the ground resulting in an

unreasonable “amount of force” on Amber Washington when he arrested her.

R.R. Vol. 4, p. 78, l. 16–22. Korey Ferguson’s incident with Amber

Washington makes it clear that his being a police officer is “unsafe” “[does not]

benefit the citizens . . . [or] the Police Department. . . .” R.R. Vol. 4, p. 73, l.

21–p. 74, l. 11.; p. 79, l. 7–p. 80, l. 13.

Given that upon reinstatement to the department, Chief Coughlin will be

Korey Ferguson’s ultimate supervisor, Chief Coughlin reviewed materials

related to Amber Washington’s complaint, including but not limited to the

investigating officers’ letters of recommendation, Korey Ferguson’s report and

memo, and the video of Korey Ferguson using force and arresting Amber

Plainview, Texas. Ferguson named the City of Plainview and both Chiefs in their official

capacities; however, due to the straightforward allegations regarding statutory compliance

and the fact that this was a nonjury trial, the City elected to overlook the duplicative named

parties and did not file motions to remove Coughlin or Mull as defendants. See Kentucky v.

Graham, 473 U.S. 159, 166 (1985); Hinds v. Slagel, Civ. A. No. 3:00-cv-2372-D, 2001 WL

548906, *1 (N.D. Tex. May 18, 2001).

Washington. R.R. Vol. 5, p. 76, l. 16–p. 77, l. 15. Chief Coughlin has

extensive experience in law enforcement and after evaluating the evidence, he

testified Ferguson’s misconduct is a barrier to him serving as an officer, “not

only in Plainview, but anywhere in the United States.” R.R. Vol. 5, p. 77, l.

21–p. 78, l. 12; R.R. Vol. 5, p. 78, l. 7–p. 79, l. 12; R.R. Vol. 5, p. 80, l. 15–22.

Chief Coughlin testified that he could not employ Korey Ferguson as a police

officer, “giving [him] a badge[,] . . . a gun[,] and the authority to put people in

custody,” because Ferguson is clearly unable to control himself when

confronted with a distraught citizen upset about her missing child. R.R. Vol. 5,

p. 76, l. 1–11; p. 77, l. 16–p. 79, 14. Ferguson threw Amber Washington to the

floor when she did not do anything “even . . . close to warranting a charge of

resisting arrest.” R.R. Vol. p. 79, l. 24–p. 80, l. 14. Korey Ferguson’s

unprofessional treatment of Amber Washington and his use of excessive force,

which was recorded on video and the leading factor for his termination from the

police department, amounted to citizen abuse and clearly demonstrates Korey

Ferguson is “not suited to be a police officer”. R.R. Vol. 5, p. 78, l. 7–p. 79, l.

12. To reinstate Korey Ferguson to his previous position with the City would

provide him the “opportunity to abuse [] more citizens”. R.R. Vol. 5, p. 80, l.

15–22.

The City of Plainview Police Department has a modest budget and

reinstating Korey Ferguson, with his proven inability to act professionally and

honorably serve the citizens of Plainview, requires Chief Coughlin to “create” a

position for Ferguson that would not involve “be[ing] out on the street working

with the public”. R.R. Vol. 5, p. 80, l. 15–p. 81, l. 21. In turn, reinstatement

will result in “one less officer on the street” in Plainview which disadvantages

the department and the citizens for whom they work to protect. R.R. Vol. 5, p.

81, l. 22–p. 82, l. 4. Further, Chief Coughlin anticipates problems with the

limited number of supervising officers available and Korey Ferguson ultimately

working under the supervision of officers to whom he claims are untruthful.

R.R. Vol. 5, p. 81, l. 11–21.

After the Trial Court received all evidence, argument of counsel and

proposed judgments, the Trial Court ruled in favor of Ferguson and found “non-

compliance of the mandates outlined in [sections] 614.023(a) and (b) require[d]

that [Korey Ferguson] is entitled to the relief he requests.” C.R. 300–01. The

City of Plainview, Texas was ordered to reinstate Korey Ferguson to his

previous position as a police officer at the rate of pay at the time of dismissal.

C.R. 300–01.

SUMMARY OF THE ARGUMENT

The Trial Court ordered the City to reinstate Korey Ferguson to his

former position as a police officer. Based on the letter to counsel from Judge

Kinkaid and his subsequent findings of fact and conclusions of law, evidently

the Court arrived at this determination because Judge Kinkaid believed

reinstatement for noncompliance with Texas Government Code section 614.023

was mandatory. The statute at issue does not contain a required remedy for

noncompliance and Korey Ferguson is not entitled to the extreme relief of

reinstatement simply because he requested it as a remedy.

Additionally, the Trial Court erred in ordering reinstatement because the

evidence adduced at trial is insufficient to support reinstatement. There is a

complete lack of evidence supporting the notion that Ferguson is currently, or

was at the time of trial, a qualified police officer whose reinstatement would not

cause a disruption among the police department. Rather, there is

uncontroverted evidence that supports the opposite; the evidence clearly shows

that after the Amber Washington incident, Ferguson is unfit to be a police

officer.

Lastly, the Trial Court abused its discretion in ordering the City to

reinstate Ferguson to his former position at the rate of pay at the time of

dismissal. Judge Kinkaid’s order to reinstate Korey Ferguson as a police officer

violates public policy because the order disregards the Chief of Police’s

assessment and strong opinion that Korey Ferguson should not be a police

officer at all, and places this dangerous officer on the streets of Plainview,

Texas. The Trial Court’s order reinstating Korey Ferguson is completely

diametric of the testimony heard at trial from the former Chief of Police who

terminated Korey Ferguson for misconduct and the current Chief of Police, who

has extensive law enforcement experience and is responsible for hiring and

maintaining a professional, ethical, and safe fleet of police officers, declared

that Korey Ferguson is unsafe and unfit to be a police officer. Also, numerous

City of Plainview, Texas employees, including the City Manager, evaluated the

decision to terminate Ferguson in connection with Amber Washington’s

complaint and further agreed his misconduct warranted termination. Moreover,

Judge Kinkaid’s order to reinstate Korey Ferguson squarely conflicts with his

finding that Amber Washington’s complaint contained sufficient evidence to

support an allegation of misconduct.

BRIEF OF THE ARGUMENT

I. STANDARD OF REVIEW

The City presents three (3) issues on appeal, each with a different

standard of review. Issue number one involves a misinterpretation of the law

whereby the Trial Court determined reinstatement was a mandatory remedy

because the City failed to comply with Texas Government Code section

614.023. In issue one, the Trial Court erred in applying the law; therefore, the

proper standard of review is de novo. See El Paso Nat. Gas Co. v. Minco Oil &

Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999); Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 928 (Tex. 1998); Barber v. Colorado ISD, 901 S.W.2d 447, 450

(Tex. 1995). Under a de novo standard of review, the appellate court does not

defer to the Trial Court’s conclusions; instead, it conducts its own review of the

record to reach a legal conclusion, which the appellate court may then substitute

in place of the Trial Court’s erroneous conclusion. See Quick v. City of Austin,

7 S.W.3d 109, 116 (Tex. 1998).

Issue number two addresses a point of error whereby the Trial Court

examined the evidence and ultimately ordered the City to reinstate Korey

Ferguson to his former position as a police officer for the City of Plainview,

Texas. There is a complete lack of evidence to support reinstatement; therefore,

the appellate court reviews this issue under the legal sufficiency standard. Raw

Hide Oil & Gas, Inc. v. Maxus Expl. Co., 766 S.W.2d 264, 275–76 (Tex.

App.—Amarillo 1988, writ denied). Because Korey Ferguson had the burden

to show he was entitled to reinstatement and failed to do so, the appellate court

must sustain the City’s no-evidence complaint if the record shows one of the

following: 1) there is no evidence supporting the challenged element, 2) the

evidence establishes the opposite of the challenged element, 3) the evidence

offered to prove the challenged element is no more than a mere scintilla, or 4)

the court is barred from considering the only evidence offered to prove the

challenged element. See Serv. Corp. v. Guerra, 348 S.W.3d 221, 228 (Tex.

2011); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Marathon

Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).

Under issue number two the City also asserts the Trial Court’s finding of

reinstatement is so contrary to the overwhelming weight of the evidence

adduced at trial that it is clearly wrong and unjust; therefore, the proper

standard of review is factual sufficiency. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); Playboy Enters. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d

250, 264 (Tex. App.—Corpus Christi 2006, pet. denied). Under the factual

sufficiency standard when the City did not have the burden of proof at trial, the

appellate court bases their review on insufficient evidence. See Croucher v.

Croucher, 660 S.W.2d 55, 58 (Tex. 1983); McMillin v. State Farm Lloyds, 180

S.W.3d 183, 201 (Tex. App.—Austin 2005, pet. denied); Gooch v. Am. Sling

Co., 902 S.W.2d 181, 184 (Tex. App.—Fort Worth 1995, no writ); see also

Raw Hide Oil & Gas, Inc., 766 S.W.2d at 276. In reviewing the record for

insufficient evidence under the factual sufficiency standard, the appellate court

considers and weighs all the evidence to determine whether the finding should

be set aside because it is so weak or so contrary to the overwhelming weight of

the evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); see Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Raw Hide Oil &

Gas, Inc., 766 S.W.2d at 276.

Issue number three directly concerns the Trial Court’s subjective

determination; therefore, the proper standard of review is abuse of discretion.

See In re Doe, 19 S.W.3d 249, 253 (Tex. 2000). The appellate court reviews

the Trial Court under this standard to determine whether the Court acted

arbitrarily or unreasonably, or without regard to guiding rules and principles.

Bowie Mem’l Hosp. v. Wright, 79 S.W.2d 48, 52 (Tex. 2002); Walker v. Packer,

827 S.W.2d 833 (Tex. 1992).

II. THE TRIAL COURT ERRED IN DETERMINING REINSTATEMENT WAS

MANDATORY FOR NONCOMPLIANCE OF TEXAS GOVERNMENT CODE

SECTION 614.023.

It is clear that the Trial Court arrived at the remedy of reinstatement

because Judge Kinkaid “believe[s] that the case law holds that the non-

compliance of the mandates outlined in 614.023 (a) and (b) require that [Korey

Ferguson] is entitled to the relief he requests.” C.R. 300–301, at 301 (emphasis

added). Judge Kinkaid goes on in the letter to counsel to “grant [Ferguson’s]

request to be reinstated to his position as a police officer of the City of

Plainview, Texas, at the rate of pay at the time of dismissal.” Id. Here Judge

Kinkaid erred in applying the law because non[]compliance of the mandates in

section 614.023 does not require the City to reinstate Korey Ferguson.6

Although the Trial Court’s decision to reinstate Korey Ferguson claims it

is supported by case law, this case is unlike those where an officer did not

receive a copy of the complaint before the City took disciplinary action and as a

remedy of noncompliance, the officer was granted the relief he requested. See

generally Guthery v. Taylor, 112 S.W.3d 715 (Tex. App.—Houston [14th Dist.]

2003) (emphasizing the “complaint” against Officer Guthery was essentially a

“Notice of Proposed Disciplinary Action” prepared by the Chief after a citizen

made only a verbal complaint that Guthery damaged her front door when he

knocked with his flashlight). Here, the Amber Washington’s complaint against

Korey Ferguson was not so minor as to amount to mere property damage but

instead involves allegations of excessive force and even a video recording that

Please note this conclusion of law challenged by Appellant is inaccurately under the

heading “Findings of Fact” signed by the judge. “The designation is not controlling” and it

must be considered for what it truly is. See, e.g., Ray v. Farmers State Bank of Hart, 576

S.W.2d 607, 608 n.1 (Tex. 1979) (citing McAshan v. Cavitt, 149 Tex 147).

supported Chief Mull’s decision to terminate Ferguson. R.R. Vol. 4, p. 73, l.

21–p. 74, l. 11. Additionally, Korey Ferguson had all the information the

statute was designed to give an officer prior to disciplinary action; however, he

did not have a piece of paper in his hand. While granting the relief requested in

Guthery may have been appropriate for an incident of minor property damage,

Korey Ferguson’s request for reinstatement to his position as a police officer

and his misconduct demonstrates such a remedy is inappropriate. R.R. Vol. 4,

p. 73, l. 21–p. 74, l. 8; p. 78, l. 16–22; p. 79, l. 7–p. 80, l. 13; and R.R. Vol. 5, p.

77, l. 21–p. 78, l. 12; p. 78, l. 7–p. 79, l. 12; p. 80, l. 15–22.

Section 614.023 does not include a specific remedy for noncompliance.

But see Guthery v. Taylor, 112 S.W.3d 715, 724 (stating the Chief “had a clear

duty to refrain from taking disciplinary action”). “When the statute is silent as

to the consequences for noncompliance, we look to the statute’s purpose in

determining the proper remedy”. See City of DeSoto v. White, 288 S.W.3d 389,

389 (Tex. 2009) (quoting Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493

(Tex. 2001)). The legislative history reveals Texas Government Code Chapter

614 provisions are intended to eliminate the “risk of being disciplined over a

baseless accusation.” H.B. 639, 79th Leg. Sess. (Tex. 2005), HOUSE RESEARCH

ORG. BILL ANALYSIS; see also Turner v. Perry, 278 S.W.3d 806, 823 (Tex.

App.—Houston [14th Dist.] 2009, pet. denied) (finding that sections 614.021,

.022, and .023 provide police officers with “procedural safeguards to reduce the

risk that adverse employment actions would be based on unsubstantiated

complaints” in a case where disciplinary action was taken without a complaint

from the alleged victim of misconduct). Additionally, the purpose of

sections 614.021–.023 is to leave discretion with the local departments in

deciding whether the evidence proves an allegation of misconduct. H.B. 639,

79th Leg. Sess. (Tex. 2005), HOUSE RESEARCH ORG. BILL ANALYSIS.

Not only does section 614.023 lack a remedy for noncompliance, it does

not establish compliance as a prerequisite to the City’s authority to follow its

administrative process when there are allegations that an officer uses excessive

force against a citizen. If cities could not cure a technical error through an

administrative process, then an officer would evade all consequences of

discipline for grievous acts against citizens based solely on a mere technicality.

White, 288 S.W.3d at 396–97; Bracey v. City of Killeen, 417 S.W.3d at 110

(applying this argument to a Civil Service Commission hearing examiner’s

jurisdiction). The absence of reinstatement language supports the notion that

unfit officers should not escape discipline simply on a technicality; according to

White, “‘we must honor that difference’”. White, 288 S.W.3d at 396. Here, the

Trial Court’s determination that reinstatement is mandatory ignores the

legislature’s deliberate omission of declaring a required remedy for

noncompliance with section 614.023 of the Texas Government Code.

An independent analysis of the record shows that section 614.023 exists

to prevent police officers from being subjected to disciplinary actions without

the existence of a valid complaint. See H.B. 639, 79th Leg. Sess. (Tex. 2005),

HOUSE RESEARCH ORG. BILL ANALYSIS; see also Turner, 278 S.W.3d at 823. It

is undisputed that Amber Washington filed a written, signed complaint against

police officer Korey Ferguson for his conduct and excessive force toward her.

R.R. Vol. 5, p. 65, l. 24–p. 66, l. 2; C.R. 355–363, at 356 ¶ 7. The City

investigated Amber Washington’s complaint and even the Trial Court found

“there was sufficient evidence to support an allegation of misconduct.” C.R.

355–63, 356 ¶ 10. In this case, it is clear that the Trial Court’s legal conclusion

is erroneous and reinstatement is merely one remedy for noncompliance with

section 614.023, not the required remedy. See Quick, 7 S.W.3d at 116

(describing the de novo standard of review).

III. THE TRIAL COURT ERRED IN ORDERING REINSTATEMENT THE BECAUSE

EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO SUPPORT

REINSTATEMENT.

A. Legal Insufficiency

This point of error is reviewed for legal insufficiency because there is no

evidence in the record to support reinstatement. Raw Hide Oil & Gas, Inc., 766

S.W.2d at 275–76. At trial, Korey Ferguson had the burden and failed to show

that after the Amber Washington incident he was entitled to reinstatement as a

police officer for the City of Plainview, Texas.

First, the record is devoid of evidence supporting the appropriateness of

Korey Ferguson’s reinstatement. See Serv. Corp., 348 S.W.3d at 228; Wilson,

168 S.W.3d at 827; Marathon Corp., 106 S.W.3d at 727. The Trial Court did

not make express findings of fact that Korey Ferguson is well-suited or

possesses the necessary skills and expertise to serve as a police officer. C.R.

355–363. Rather, the Trial Court’s determination to reinstate Ferguson was

based on the erroneous conclusion that noncompliance with Texas Government

Code § 614.023 made it mandatory for Ferguson to receive the relief he

requested, i.e. reinstatement. See C.R. 355–363, at 360 ¶ 36. As mentioned in

section II, it is clear that this legal conclusion was incorrect and the appellate

court should substitute its own analysis for the Trial Court’s misguided

conclusion. See Quick, 7 S.W.3d at 116 (describing the appellate court’s role in

a de novo review for a pure question of law).

Second, the evidence in the record establishes the opposite of the

challenged element. See Serv. Corp., 348 S.W.3d at 228; Wilson, 168 S.W.3d

at 827; Marathon Corp., 106 S.W.3d at 727. Korey Ferguson acknowledged

that numerous people reviewed his conduct in regard to his treatment of Amber

Washington and assessed whether it was appropriate. R.R. Vol. 5, p. 59, l. 8–

11 (noting his supervisors reviewing the incident within the police department

had more training and experience in law enforcement as compared to him).

Every person—from the City of Plainview, Texas Police Department, to the

City Grievance Committee and eventually the City Manager—who reviewed

Ferguson’s interaction with Amber Washington determined there was clearly

evidence of misconduct that warranted his expulsion from the police force.

Even the Trial Court found sufficient evidence to support an allegation of

misconduct; all the while, Korey Ferguson maintains he did not do one single

thing wrong. C.R. 355–63, 356 ¶ 10; R.R. Vol. 5, p. 60, l. 12–22. Ferguson

does not take responsibility for any bad judgment, bad conduct, use of

excessive force, or lack of good decision-making. R.R. Vol. 5, p. 60, l. 12–22.

Former Chief of Police William Mull testified that Korey Ferguson’s

incident with Amber Washington showed a “lack of experience and lack of

expertise” for a law enforcement officer. R.R. Vol. 4, p. 73, l. 21–p. 74, l. 8.

Current Chief of Police Kenneth Coughlin reviewed Ferguson’s conduct with

Amber Washington, including the video showing Ferguson’s excessive use of

force against her. R.R. Vol. 5, p. 76, l. 16–p. 77, l. 15. The record contains

extensive evidence that reinstatement is not proper; specifically, Chief

Coughlin’s testimony that after the incident with Amber Washington, it is clear

that Korey Ferguson is not an acceptable police officer and falls well below the

standards for the City of Plainview, Texas, Police Department. R.R. Vol. 5, p.

77, l. 21–p. 78, l. 12. Chief Coughlin testified that at this point in time,

Ferguson is “not suited to be a police officer” and to reinstate Korey Ferguson

to his previous position with the City of Plainview, Texas, Police Department

would provide him the “opportunity to abuse [] more citizens”. R.R. Vol. 5, p.

78, l. 7–p. 79, l. 12; p. 80, l. 15–22.

Alternatively, any evidence offered to prove that Korey Ferguson is

qualified and entitled to reinstatement as a police officer amounts to no more

than a mere scintilla. See Serv. Corp., 348 S.W.3d at 228; Wilson, 168 S.W.3d

at 827; Marathon Corp., 106 S.W.3d at 727. For legal insufficiency on this

point of error, the City concedes Ferguson’s previous discipline history alone

did not warrant his termination; however, the Amber Washington incident

marked a point in time in which Korey Ferguson exhibited conduct that was so

unprofessional that Ferguson was no longer able to perform his duties as a law

enforcement officer for the City of Plainview, Texas. The only evidence in the

record that could possibly be construed as supportive in reinstating Ferguson,

because of his qualifications is his own testimony that he is eligible to return to

work, is his required TCLEOSE training is up to date. R.R. Vol. 5, p. 71, l. 6–

10. The minimal amount of evidence that Korey Ferguson may scrounge from

the record is not more than a mere scintilla, and like the other two factors

mentioned above, will lead the appellate court to find there is no evidence to

support Korey Ferguson’s reinstatement on the basis that he is a good,

professional, qualified, and reputable law enforcement officer whom is fit to

serve the City of Plainview, Texas.

B. Factual Insufficiency

There is factually insufficient evidence to support a finding of

reinstatement after Ferguson’s use of excessive force against Amber

Washington. Upon a review of the record, it is clear that the overwhelming

weight of the evidence adduced at trial is contrary to reinstatement; therefore

this finding should be set aside.

The testimony at trial from former Chief of Police William Mull and

notably the current Chief of Police Kenneth Coughlin makes it clear that the

Trial Court’s order for the City to reinstate Korey Ferguson is simply wrong

and unjust. Cain, 709 S.W.2d at 176; Playboy Enters., 202 S.W.3d at 264.

Here, Korey Ferguson did not carry his burden to show reinstatement was

supported by facts in the record. See Croucher, 660 S.W.2d at 58 (the appellate

court bases a factual sufficiency review on insufficient evidence when

Appellant does not have the burden at trial); McMillin, 180 S.W.3d at 201;

Gooch, 902 S.W.2d at 184; see also Raw Hide Oil & Gas, Inc., 766 S.W.2d at

276.

Upon reinstatement, Chief Coughlin will be Korey Ferguson’s ultimate

supervisor. R.R. Vol. 5, p. 76, l. 16–p. 77, l. 15. The current Chief of Police

has extensive law enforcement experience and made it clear that it would

violate public trust to allow Ferguson to resume his position and cloak him with

“a badge and a gun and the authority to put people in custody.” R.R. Vol. 5, p.

76, l. 1–11; p. 77, l. 16–p.78, 12. The uncontroverted evidence at trial

demonstrates that “Mr. Ferguson is not suited to be a police officer, not only in

Plainview, but anywhere in the United States.” R.R. Vol. 5, p. 78, l. 7–12.

Further, the evidence showed that reinstatement would cause a grave disruption

among the City of Plainview, Texas Police Department in that in order to

uphold his duties to the public and refrain from placing Appellant in a position

where he has the “opportunity to abuse [] more citizens”, Chief Coughlin

“would have to create a position” for Korey Ferguson. R.R. Vol. 5, p. 80, l. 15–

22; p. 81, l. 4–21. The record shows that reinstatement is not only disruptive to

the City but is dangerous because reinstating Korey Ferguson would cause

Plainview to have “one less officer on the street”. R.R. Vol. 5, p. 81, l. 22–p.

82, l. 4. The Trial Court’s finding that Korey Ferguson should be reinstated to

his position as a police officer is clearly contrary to the overwhelming weight of

the evidence. Garza, 395 S.W.2d at 823; see Maritime Overseas Corp., 971

S.W.2d at 407; Raw Hide Oil & Gas, Inc., 766 S.W.2d at 276.

IV. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT

TO REINSTATE APPELLEE TO HIS FORMER POSITION AT THE RATE OF

PAY AT THE TIME OF DISMISSAL.

A. The Trial Court’s Order to Reinstate Appellant Is Against Public Policy

The Trial Court ordered the City to reinstate Korey Ferguson “to his

position as a police officer of the City of Plainview, Texas[,] at the rate of pay

at the time of dismissal” without reference to guiding rules or principles. Bowie

Mem’l Hosp., 79 S.W.2d at 52; Walker, 827 S.W.2d at 839. The City of

Plainview is a home rule municipal corporation with broad discretionary

powers limited only by the Texas Constitution that states no charter or

ordinance “shall contain any provision inconsistent with the Constitution of the

State, or of the general laws enacted by the Legislature of this State.” City of

Plainview Charter, Art. I, Powers of the City; Tex. Const., art. XI, § 5

(Vernon’s Supp. 2014); and TEX. LOC. GOVT. CODE, § 51.071 (Vernon’s 2008).

As a home rule municipality, the City looks to the legislature for limits on their

power, and absent any, it possesses the full power of self-government. Id.

The City of Plainview has not adopted state civil service provisions at

Texas Local Government Code, Chapter 143 (Vernon’s 2008). Rather, City

employees are subject to the City of Plainview Charter, Section 3.04(1), which

states the City Manager’s powers and duties in regard to disciplinary matters as

follows:

“(1) [a]ppoint and, when necessary for the good of the service, suspend

or remove all city employees and appointive administrative officers provided

for by or under this charter, except as otherwise provided for by law, this

charter or personnel rules adopted pursuant to this charter. . . .”

City of Plainview Charter, Art. III, Section 3.04(1). Further, the City of

Plainview Charter declares the City of Plainview is an at-will employer; in

accordance with the Charter, the City Manager has approved and amended

personnel policies applicable to all City employees, including the police

department. See City of Plainview Charter, Art. IV, Section 4.02 (delegating

power to the City Manager); City of Plainview Personnel Policy, Part X,

Discipline. This policy states that dismissals are “effective upon the approval

of the employee’s director and the City Manager.” City of Plainview Personnel

Policy, § 10.2.E. The grievance procedure and administrative appeal is set out

in the personnel policy for all City employees. Essentially, the administrative

appeal allows an employee to seek redress with 1) a joint meeting with the

supervisor and director, 2) a grievance committee hearing, and 3) a final appeal

to the City Manager. City of Plainview Personnel Policy, § 10.5.E.

In this case, the City complied with the administrative remedies

mandated by the City of Plainview Charter and Personnel Policies. City of

Plainview Charter, Article I, Powers of the City; Tex. Const., art. XI at § 5; and

TEX. LOC. GOVT. CODE § 51.071. Korey Ferguson and his attorney stepped

through the administrative process presenting evidence, confronting Amber

Washington, and arguing Ferguson should not be terminated solely because the

City failed to give Korey Ferguson a physical copy of Amber Washington’s

complaint prior to taking any disciplinary action. Tex. Govt. Code § 614.023.

Aside from the City’s failure to comply with section 614.023, there was ample

support during the administrative process to determine Korey Ferguson

subjected a Plainview citizen to excessive force and acted improperly. C.R.

355–63, at 356 ¶ 10. As such, following the investigation and numerous

reviews and appeals provided by the City, the City Manager ultimately made

the decision that Ferguson’s actions warranted his termination. R.R. Vol. 5, p.

11, l. 12–16, 22–p. 12, l. 1; p. 67, l. 2–7. Korey Ferguson was afforded a

lengthy hearing before the grievance committee whereby the City reviewed the

Amber Washington incident and allegations of misconduct; the grievance

committee upheld Ferguson’s termination based on their review of the

evidence. R.R. Vol. 5, p. 6, l. 3–14; l. 24–p. 10, l. 8. Accordingly, the Trial

Court found that Amber Washington’s complaint was investigated and Korey

Ferguson’s misconduct warranted termination. C.R. 356.

The Texas Supreme Court stated that deference should be given to the

administrative agencies “when (1) the agency is staffed with experts trained in

handling complex problems within the agency’s purview, and (2) great benefit

is derived from the agency’s uniform interpretation of laws within its purview

and the agency’s rules and regulations when courts and juries might reach

differing results under similar fact situations”. In re Southwest Bell Telephone

Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) . In this regard, the Trial Court

upheld the determination of the City’s decision-makers within the

administrative process agreeing the evidence supported the finding that Korey

Ferguson subjected a Plainview citizen to excessive force. See C.R. 355–63, at

356 ¶ 10.

During the grievance process, the grievance committee upheld the police

department’s decision to terminate Ferguson after hearing witnesses, viewing

evidence, and hearing from Mr. Ferguson’s attorney. R.R. Vol. 5, p. 11, l. 12–

16, 22–p. 12, l. 1; p. 67, l. 2–7. Korey Ferguson and his attorney even

confronted the complainant on her story after she told the Committee what he

did to her. Id. After the hearing, the City Manager made the final

determination to terminate the officer for his excessive force against a

Plainview citizen. Id.

A city is staffed with people trained to handle complex problems

resulting when an officer’s actions may warrant discipline, and if necessary,

determine the appropriate level of discipline to impose. See In re Southwest

Bell Telephone Co., L.P., 226 S.W.3d at 403; Nelson v. City of Dallas, 278

S.W.3d 90, 96 (Tex. App.—Dallas 2009). Allowing courts and juries to

determine police disciplinary issues is likely to produce varied results for

similar factual situations creating uncertainty and less uniformity in addressing

police disciplinary issues. The uncertainty and lack of uniformity undermines

“both the City’s authority to operate and manage the department and the

confidence of the public and the police officers that discipline issues will be

handled in a uniform manner.” Nelson, 278 S.W.3d at 96.

The Trial Court’s order that the City reinstate Korey Ferguson essentially

amounts to requiring the City of Plainview to violate its public trust of its

citizens and allow an unfit officer to serve in a public safety position. R.R. Vol.

5, p. 77, l. 21–p. 79, l. 12. Reinstatement under these circumstances is clearly

without reference to guiding principles and unreasonably requires the City to

breach its duty to the public to provide its citizens health and safety within the

community and reinstate an unsafe officer to the police force.

V. THE REMEDY OF REINSTATEMENT DOES NOT FIT THE CIRCUMSTANCES

PRESENTED

The order reinstating Korey Ferguson is arbitrary and unreasonable

because it applies a severe penalty for the City’s technical failure to comply

with section 614.023 that is not supported within the statute itself, its legislative

history or purpose, lacks legal and factual sufficiency, and is against public

policy. TEX. GOVT. CODE § 614.023. The Trial Court has broad discretion;

however, a “‘remedy . . . must fit the circumstances presented”. ERI Consulting

Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 874 (Tex. 2010) (discussing the

equitable remedy of forfeiture concerning a trustee’s breach of trust). When the

Court orders an equitable remedy it must consider “[t]he gravity and timing of

the violation . . . and whether a violation is clear and serious”. Id. Here, the

City’s noncompliance in failing to provide Korey Ferguson with a piece of

paper before taking disciplinary action, which was cured, is a hyper-technical

violation that does not deserve such a severe remedy as reinstating a dangerous

and unfit police officer.

Similar to noncompliance with Texas Government Code section 614.023,

courts have addressed the imbalance of reinstating an officer whose misconduct

is so unacceptable because of a City’s hyper-technical procedural violation in

the civil service setting. For example, the City of Athens police chief

indefinitely suspended a police officer for engaging in sexual relations with a

woman while on duty as well as committing other departmental policy

violations. City of Athens v. MacAvoy, 353 S.W.3d 905, 906 (Tex. App.—Tyler

2011). The Tyler court did not agree with the hearing examiner that an officer

should be reinstated solely because the City did not comply with Texas

Government Code § 614.023. This court followed the Texas Supreme Court’s

analysis and concluded that this statute did not contain specific consequences

for a City’s noncompliance. Id. at 909–10 (citing White, 288 S.W.3d at 395–

397 and City of Pasadena v. Smith, 292 S.W.3d 14, 21 (Tex. 2009)). The court

explained that if the complainant’s statement must be given before discipline

can be imposed, then a police officer could not be relieved of his duties after he

committed a grave breach of the public’s trust. MacAvoy, 353 S.W.3d at 909–

10. In interpreting a very similar statute imposing a mandatory duty on

municipalities related to an employee’s termination, the Supreme Court plainly

states that noncompliance with that duty does not indicate the employee cannot

be disciplined absent the legislature’s specific statement to the contrary. Id. at

910 (citing White, 288 S.W.3d at 395–97). Without a “legislative directive that

the failure to provide a complainant’s statement prior to discipline means that

the officer will escape discipline,” the Trial Court exceeded its jurisdiction in

mandating reinstatement solely on a violation of the statute. See MacAvoy, 353

S.W.3d at 910 (citing Smith, 292 S.W.3d at 21).

As mentioned previously under Section I., the legislature failed to state a

specific remedy for noncompliance which opens the door to options such as

some form of abatement or the opportunity to cure the noncompliance as the

Court in White did. See generally White, 288 S.W.3d 389. Reinstating an

officer that the City knows inflicted excessive force on a Plainview citizen

would violate the City’s public trust given the vital role police officers perform

for our society. Id. at 396–97; Bracey, 417 S.W.3d at 109. The Texas Supreme

Court stated that curing the notice requirement allows the City to assure

“appellate rights without dismissing a case against a potentially unfit officer... .”

White, 288 S.W.3d at 399 (analyzing the pre-suit notice requirement for civil

service employees). The knowledge that communities do not need “unfit

officers” on their police force for public safety purposes may be the very reason

the legislature deliberately left the door open for remedies for noncompliance;

without a prescribed remedy, the relief for noncompliance with the statute can

fit the fact situation that led to the disciplinary action against a police officer.

See generally id.; Smith, 292 S.W.3d 14 (applying this same analysis to the

Civil Service Commission’s remedy for noncompliance with notice

requirements).

In the case at bar, Korey Ferguson was provided the opportunity to

defend himself against Amber Washington’s allegations before the City

Manager finalized his termination; the City afforded Ferguson a number of

appeals through the administrative process to ensure the officer’s rights were

not violated. R.R. Vol. 5, p. 6, l. 3–14; l. 24–p. 10, l. 8; p. 11, l. 12–16, 22–p.

12, l. 1; p. 63, l. 8–p. 64, l. 12; p. 67, l. 2–7. Ferguson had an attorney through

the administrative process, knew the allegations against him, presented

evidence and confronted his accuser in a hearing. Id. Here, the failure to hand

Korey Ferguson a piece of paper did not deprive him of any rights regarding his

termination nor has he ever claimed a violation of such rights.7 See generally,

Baca v. City of Dallas, 796 S.W.2d 497, 499 (Tex. App.—Dallas 1990);

Nelson, 278 S.W.3d at 97; see Cleveland Brd. of Educ.v. Loudermill, 470 U.S.

532, 538 (1985). The City acted in accordance with their charter and personnel

policies and followed their administrative process for disciplining an employee.

As a home rule municipal corporation, the City was exercising its broad

discretionary powers not limited by the Texas Constitution or the laws of the

State. See City of Plainview Charter, Art. I, Powers of the City; Tex. Const.,

art. XI at § 5; TEX. LOC. GOVT. CODE § 51.071. Consequently, the Trial Court’s

order to reinstate Korey Ferguson is arbitrary and unreasonable because it

requires the City of Plainview, Texas, to reinstate an unfit officer who was

terminated for excessive force against a Plainview citizen when she was seeking

help from the police department because “[h]er child [was] missing”. R.R. Vol.

5, p. 78, l. 13–p. 79, 12.

Korey Ferguson’s complaint in the underlying suit was limited to noncompliance with Tex.

Govt. Code § 614.023 in not being provided with a copy of Amber Washington’s complaint

before he was terminated by Chief Mull on March 9, 2013. In fact, Korey Ferguson testified

that Chief Mull “reached over the desk and handed [the complaint] to [him] and [he] read it

and started kind of skimming through it” but he gave the document back to Chief Mull and

was not provided a copy for his attorney. R.R. Vol. 5, p. 31, l. 12–p. 32, l. 5.

CONCLUSION AND PRAYER

The Trial Court’s determination that reinstatement is mandatory for

noncompliance of Texas Government Code Section 614.023 is a

misinterpretation of the law. The statute deliberately lacks a specified remedy

for noncompliance and the Trial Court’s order of reinstatement ignores the

purposeful construction and purpose of the law. As such, the Trial Court’s

determination is error and the appellate court’s analysis should be substituted in

its place.

Reinstatement is not supported in the record because there is a clear lack

of evidence that Korey Ferguson is an honorable law enforcement officer

capable of performing his duties and interacting with the public following the

Amber Washington incident. The record is devoid of evidence that supports the

Trial Court’s order to reinstate Korey Ferguson; therefore, this finding should

be set aside.

The Trial Court abused its discretion in ordering the City to reinstate

Korey Ferguson as it is against public policy for a District Court to force a city

to arm an unfit officer against the overwhelming evidence that Korey Ferguson

used excessive force against a citizen. Korey Ferguson possessed all of the

information the statute at issue was designed to provide, but simply did not

have a piece of paper in front of him. Thus, the hyper-technical violation of

noncompliance that occurred here does not warrant the remedy of reinstatement

because it does not fit the circumstances presented and was arbitrary and

unreasonable.

Respectfully submitted,

SPROUSE SHRADER SMITH P.C.

Mark D. White, SBN. 21317900

mark.white@sprouselaw.com

Malerie T. Anderson, SBN. 24087102

malerie.anderson@sprouselaw.com

701 S. Taylor, Suite 500

P. O. Box 15008

Amarillo, Texas 79105-5008

Phone: (806) 468-3300;

Fax: (806) 373-3454

/s/ Mark D. White

Mark D. White

and

CITY OF PLAINVIEW

Leslie Spear, SBN. 21202700

lschmidt@plainviewtx.org

901 Broadway Street

Plainview, Texas 79072

Phone: (806) 296-1127

Fax: (806) 296-1125

ATTORNEYS FOR APPELLANTS

CITY OF PLAINVIEW TEXAS, WILLIAM

MULL, IN HIS OFFICIAL CAPACITY AS

CHIEF OF POLICE OF THE CITY OF

PLAINVIEW POLICE DEPARTMENT, AND

KEN COUGHLIN, IN HIS OFFICIAL

CAPACITY AS CHIEF OF POLICE OF THE

CITY OF PLAINVIEW POLICE DEPARTMENT

CERTIFICATE OF SERVICE

I hereby certify that on February 18, 2015, I electronically filed the foregoing

document using the electronic case filing system. The electronic case filing

system will send a “Notice of Electronic Filing” to the following attorneys of

record who have consented in writing to accept this Notice as service of this

document by electronic means:

ATTORNEY FOR APPELLEE:

TEXAS MUNICIPAL POLICE ASSOCIATION Via Certified Mail, RRR

Randall C. Doubrava & email

6200 La Calma Drive, Suite 200

Austin, Texas 78752

DESHAZO & NESBITT, L.L.P. Via Certified Mail, RRR

Rachel Noffke & email

809 West Avenue

Austin, Texas 78701

LAW OFFICE OF LANCE F. WYATT, PLLC Via Certified Mail, RRR

Lance F. Wyatt & email

141 Countryside CT Ste 150

Southlake, Texas 76092

/s/ Mark. D. White

Mark D. White

CERTIFICATE OF COMPLIANCE

Certificate of Compliance with Type-Volume Limitation, Typeface

Requirements, and Type Style Requirements:

1. This brief complies with the type-volume limitation of Texas Rule

of Appellate Procedure 9.4(i) because:

This brief contains 8,553 words, excluding the parts of the brief

exempted by the Texas Rules of Appellate Procedure.

2. This brief complies with the typeface requirements of Texas Rule

of Appellate Procedure 9.4(e) and the style requirements of Texas Rule of

Appellate Procedure 9.4(b)-(c) because:

This brief has been prepared in a proportionally spaced typeface using

Microsoft® Office Word 2007 in Times New Roman 14 font size.

/s/ Mark D. White

Mark D. White

827894_1.docx

2326.01

APPENDIX

1. TEX. GOVT. CODE § 614.021

2. TEX. GOVT. CODE § 614.022

3. TEX. GOVT. CODE § 614.023

4. TEX. LOC. GOVT. CODE, § 51.071 (Vernon’s 2008)

5. City of Plainview Charter, Art. I, Powers of the City

6. Tex. Const., art. XI, § 5 (Vernon’s Supp. 2014)

7. City of Plainview Personnel Policy

8. Cases

APPENDIX 1

§ 614.021. Applicability of Subchapter, TX GOVT § 614.021

Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 6. Public Officers and Employees (Refs & Annos)

Subtitle A. Provisions Generally Applicable to Public Officers and Employees

Chapter 614. Peace Officers and Fire Fighters

Subchapter B. Complaint Against Law Enforcement Officer or Fire Fighter

V.T.C.A., Government Code § 614.021

§ 614.021. Applicability of Subchapter

Effective: September 1, 2005

Currentness

(a) Except as provided by Subsection (b), this subchapter applies only to a complaint against:

(1) a law enforcement officer of the State of Texas, including an officer of the Department of Public Safety or of the Texas

Alcoholic Beverage Commission;

(2) a fire fighter who is employed by this state or a political subdivision of this state;

(3) a peace officer under Article 2.12, Code of Criminal Procedure, or other law who is appointed or employed by a political

subdivision of this state; or

(4) a detention officer or county jailer who is appointed or employed by a political subdivision of this state.

(b) This subchapter does not apply to a peace officer or fire fighter appointed or employed by a political subdivision that is

covered by a meet and confer or collective bargaining agreement under Chapter 143 or 174, Local Government Code, if that

agreement includes provisions relating to the investigation of, and disciplinary action resulting from, a complaint against a

peace officer or fire fighter, as applicable.

Credits

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 507, § 1, eff. Sept. 1, 2005.

Notes of Decisions (5)

V. T. C. A., Government Code § 614.021, TX GOVT § 614.021

Current through the end of the 2013 Third Called Session of the 83rd Legislature

APPENDIX 2

§ 614.022. Complaint to Be in Writing and Signed by Complainant, TX GOVT § 614.022

Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 6. Public Officers and Employees (Refs & Annos)

Subtitle A. Provisions Generally Applicable to Public Officers and Employees

Chapter 614. Peace Officers and Fire Fighters

Subchapter B. Complaint Against Law Enforcement Officer or Fire Fighter

V.T.C.A., Government Code § 614.022

§ 614.022. Complaint to Be in Writing and Signed by Complainant

Effective: September 1, 2005

Currentness

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.

Credits

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 507, § 1, eff. Sept. 1, 2005.

Notes of Decisions (11)

V. T. C. A., Government Code § 614.022, TX GOVT § 614.022

Current through the end of the 2013 Third Called Session of the 83rd Legislature

APPENDIX 3

§ 614.023. Copy of Complaint to Be Given to Officer or Employee, TX GOVT § 614.023

Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 6. Public Officers and Employees (Refs & Annos)

Subtitle A. Provisions Generally Applicable to Public Officers and Employees

Chapter 614. Peace Officers and Fire Fighters

Subchapter B. Complaint Against Law Enforcement Officer or Fire Fighter

V.T.C.A., Government Code § 614.023

§ 614.023. Copy of Complaint to Be Given to Officer or Employee

Effective: September 1, 2005

Currentness

(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.

Credits

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 507, § 1, eff. Sept. 1, 2005.

Notes of Decisions (15)

V. T. C. A., Government Code § 614.023, TX GOVT § 614.023

Current through the end of the 2013 Third Called Session of the 83rd Legislature

APPENDIX 4

§ 51.071. Subchapter Applicable to Home-Rule Municipality, TX LOCAL GOVT § 51.071

Vernon's Texas Statutes and Codes Annotated

Local Government Code (Refs & Annos)

Title 2. Organization of Municipal Government

Subtitle D. General Powers of Municipalities

Chapter 51. General Powers of Municipalities

Subchapter E. Provisions Applicable to Home-Rule Municipality

V.T.C.A., Local Government Code § 51.071

§ 51.071. Subchapter Applicable to Home-Rule Municipality

Currentness

This subchapter applies only to a home-rule municipality.

Credits

Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987.

Editors' Notes

REVISOR'S NOTE

2008 Main Volume

The revised law adds this section as a drafting convenience. The source law for this subchapter applies only to a

home-rule municipality.

Notes of Decisions (1)

V. T. C. A., Local Government Code § 51.071, TX LOCAL GOVT § 51.071

Current through the end of the 2013 Third Called Session of the 83rd Legislature

APPENDIX 5

CmDFPUI-EWIJIIAIITlR

Article I

Powers of the City

Section 1.01. Powers of the City

The City shall have all powers possible for a city to have under the constitution

and laws of this State as fully and completely as though they were specifically

enumerated in this charter.

Section 1.02. Construction.

The powers of the City under this charter shall be construed liberally in favor of

the city, and the specific mention of particular powers in the charter shall not be

construed as limiting in any way the general power granted in this charter or by the

State.

Section 1.03. Intergovernmental Relations.

The City may exercise any of its powers or perform any of its functions and may

participate in the financing thereof, jointly or in cooperation, by contract or otherwise,

with any one or more states or any state civil division or agency, or the United States

or any of its agencies. ·

Section 1.04. Corporate Name.

All inhabitants of the City of Plainview, Hale County, Texas, within the corporate

limits, shall constitute a body politic, incorporated under the laws of the State of

Texas, and to be known by the name and designation of the "City of Plainview" with

all rights, powers, privileges, immunities, and duties herein granted and defined, and

as may be provided by any amendments of the Charter of the City of Plainview.

Article II

CITY COUNCIL

Section 2.01. Powers and Duties.

a. All powers of the City shall be vested in the mayor and city council except as

otherwise provided by law or this charter and the mayor and city council shall provide

for the exercise thereof and for the performance of all duties and obligations

imposed on the city by law.

b. Directors will be reviewed by the Mayor and City Council every two years for

job performance from the date of their original appointment.

Section 2.02. Composition, Eligibility, Election and Terms.

(a) Composition. There shall be a city council composed of the mayor and

seven (7) members. One council member shall be elected by the voters in each of

seven (7) council districts. The mayor shall be elected at-large.

(b) Eligibility. Only those citizens who are eligible to become registered voters

CmDFPUJIWIEWC/IAIITBI

of the City shall be eligible to hold the office of councilmember or mayor.

Councilmembers and the mayor shall have resided within the City for one year;

Councilmembers shall have resided within the district from which said

councilmember is to be elected for at least six (6) months; and not have served

more than two (2) consecutive full terms, immediately preceding the year in which

elective office is sought. In the event a boundary change, caused by redistricting of

the boundaries within the city limits, results in a potential councilmember failing to

reside in the district for the required six months, he/she will be allowed to run for

election in the current district in which he/she resides, provided (all other eligibility

requirements are met. Additionally, should a boundary change result in an

incumbent councilmember failing to reside in the district from which he/she was

elected, he/she shall serve the remainder of the term for the district from which

he/she was elected. At the next regular election, he/she will required to run for

election from the newly determined district, if they wish to continue to serve on the

city council.

Councilmembers shall be held on the first uniform election date in May in each even-

numbered year in the manner provided by law. At the first regular election under this

charter, in 1996, Councilmembers from council districts five, six and seven shall be

elected, and shall serve for terms of four {4) years. At the second regular election

under this charter, in 1998, Councilmembers from council districts one, two, three

and four shall be elected, and shall serve for terms of four {4) years. Thereafter, all

Councilmembers shall serve for terms of four (4) years.

Section 2.03. Mayor

The regular election of mayor shall be held at the second regular election under

this charter, in 1998, and shall be at-large. The mayor shall serve for a term of two

(2) years. Effective with the 2000 elections the mayor, thereafter, shall serve for a

term of four (4) years; and not have served more than two (2) consecutive full terms

immediately preceding the year in which elective office is sought.

The mayor shall be a member of the city council, shall have the power to vote

and shall preside at meetings of the council, represent the city in intergovernmental

relationships, present an annual state of the city message, and perform other duties

specified by the council. The mayor shall be recognized as head of the city

government for all ceremonial purposes and by the governor for purposes of military

law, but shall have no administrative duties. The council shall, at the first regular

meeting following the regular scheduled election for council, elect from among its

members a mayor-pro tempore who shall act as mayor during the absence or

disability of the mayor and, if a vacancy occurs, shall become mayor until a new

mayor is elected.

Section 2.04. Compensation; Expenses.

The mayor and city council may determine the annual salary of the mayor and

Councilmembers by ordinance, but no ordinance increasing such salary shall

become effective until the date of commencement of the terms of Councilmembers

elected at the next regular election. The mayor and Council members shall receive

their actual and necessary expenses incurred in the performance of their duties of

office.

Section 2.05. Prohibitions.

(a) Holding Other Office. Neither the Mayor or councilmember shall hold any

other city office or employment during the term for which the member was elected to

the council. No former mayor or councilmember shall hold any compensated

appointive office or employment with the City until one year after the expiration of the

term for which the member was elected to the council. Nothing in this section shall

be construed to prohibit the council from selecting any current or former mayor or

council member to represent the city on the governing board of any regional or other

intergovernmental agency.

(b) Appointments and Removals. Neither the mayor or city council members

shall in any manner control or demand the appointment or removal of any

administrative officer or employee whom the city manager or any subordinate of the

city manager i~ empow~red to appoint, but the council may express its views and

fully and freely discuss with the city manager anything pertaining to appointment and

removal of such officers and employees.

investigations under 3 2.09, the mayor and Councilmembers shall deal with the City

officers and employees·who are subject to the direction and supervision of the city

manager solely through the city manager, and neither the mayor or councilmembers

shall give orders to any such officer or employee, either publicly or privately.

Section 2.06. Vacancies; Forfeiture of Office; Filling of Vacancies.

(a) Vacancies. The office of mayor or councilmember shall become vacant

upon the member's death, resignation, removal from office or forfeiture of office in

any manner authorized by law.

(b) Forfeiture of Office. A council member, including the mayor, shall forfeit that

office if the councilmember during the term of office for which elected:

(1) lacks at any time any qualification for the office prescribed by this charter or

bylaw.

(2) violates any express prohibition of this charter.

(3) is convicted of a crime involving moral turpitude; A moral turpitude is

defined as an act of baseness, vileness or depravity in the private and social duties

which human beings owe their fen ow human beings or to society in general, contrary

to the accepted and customary rule of right and duty between human beings.

(4) fails to attend three consecutive regular meetings of the council without

being excused by the council.

CITYIFPU/JmEWCIIAIITBI

The above list is not to be construed as being all-inclusive.

not be filled by appointment, but must be filled by majority vote of the qualified voters

at a special election called for such purpose within one hundred twenty (120) days

after such vacancy occurs. Vacancies filled by special elections shall be for the

remainder of the term.

Section 2.07. Judge of Qualifications.

The mayor and city council shall be the judge of the election and qualifications of

its members and of the grounds for forfeiture of their office. The mayor and council

shall have the power to set additional standards of conduct for its members, by

ordinance, beyond those specified in the charter and may provide for such penalties

as it deems appropriate, including forfeiture of office. In order to exercise these

powers, the council shall have the power to subpoena witnesses, administer oaths,

and require production of evidence. A member charged with conduct constituting

grounds for forfeiture of office shall be entitled to a public hearing on demand and

notice of such hearing shall be published in one or more newspapers of general

circulation in the city at least one week in advance of the hearing. Decisions made

by the council under this section shall be subject to judicial review.

Section 2.08. City Secretary.

The city secretary shall give notice of council meetings to its members and the

public, keep the journal of its proceedings and perform such other duties as are

assigned by this charter or by the council or by the city manager or by state law.

Section 2.09. Investigations.

The city council may make an investigation into the affairs of the city and the

conduct of any city department, office or agency and for this purpose may subpoena

witnesses, administer oaths, take testimony, and require the production of evidence.

Failure or refusal to obey a lawful order issued in the exercise of these powers by

the council shall be a class C misdemeanor.

Section 2.10. Independent Audit.

The mayor and city council shall provide for an independent annual audit of all

City accounts and may provide for more frequent audits as it deems necessary, such

audits shall be made by a certified public accountant or firm in accordance with

generally accepted governmental accounting principals and generally accepted

governmental auditing standards of such accountants. The mayor and council may,

without requiring competitive bids, designate such accountant or firm annually or for

a period not exceeding five (5) years, but designation for any particular fiscal year

shall be made no later than 30 days after the beginning of such fiscal year. If the

state makes such an audit, the council may accept it as satisfying the requirements

of this section.

Section 2.11. Procedure

(a) Meetings. The mayor and council will meet regularly at least once in every

month at such times and places as the council may prescribe by resolution. Special

meetings may be held on the call of the mayor or of three (3) or more members.

Except as allowed by state law, all meetings shall be public.

(b) Rules and Journal. The city council will determine its own rules and order of

business and shall provide for keeping a journal of its proceedings. This journal

shall be a public record.

ayes and nays shall be recorded in the journal. Five (5) members of the council

shall constitute a quorum. No action of the council, except as otherwise provided in

this charter or state law, shall be valid or binding unless adopted by a majority of

those council members present and voting.

Section 2.12. Action Requiring an Ordinance.

In addition to other acts required by law or by specific provision of this charter to

be done by ordinance, those acts of the city council shall be by ordinance which:

(1) Adopt or amend an administrative code or establish, alter, or abolish

any city department, office or agency.

(2) Provide for a fine or other penalty or establish a rule of regulation for

violation of which a fine or other penalty is imposed.

(3) Levy taxes.

(4) Grant, renew, or extend a franchise.

(5) Regulate the rate charged for its services by a public utility.

(6) Authorize the borrowing of money.

(7) Convey or lease or authorize the conveyance or lease of any lands of

the city.

(8) Regulate land use and development; and

(9) Amend or repeal any ordinance previously adopted.

(1 0) Set the rate for services, fees or licenses provided by the City.

Acts other than those referred to in the preceding sentence may be done either

by ordinance or by resolution or by motion.

Section 2.13. Ordinances in General.

(a) Form. Every proposed ordinance shall be introduced in writing and in the

form required for final adoption. No ordinance shall contain more than one ·

which shall be in its title. The enacting clause shall

. Any ordinance which repeals or amends an existing

ordinance or part of the city code shall set out in full the ordinance, sections, or

subsections to be repealed or amended, and shall indicate matters to be omitted by

enclosing in brackets or by strike out type and shall indicate new matters by

underscoring or by italics, or some other method.

(b) Procedure. An ordinance may be introduced by any member at a regular or

special meeting of the council. An ordinance can not be acted upon at the meeting it

is introduced, unless an emergency exists. Upon introduction of any ordinance, the

city secretary shall (1) distribute a copy to each councilmember and to the city

manager (2) file a reasonable number of copies in the office ofthe city secretary and

such other public places as the council may designate. The council may adopt the

ordinance with or without amendment or reject it, but if it is amended as to any

matter of substance, the council shall not adopt it until the ordinance or its amended

section(s) have been subjected to all the procedures herein before required in the

case of a newly introduced ordinance. As soon as practicable after adoption, the city

secretary shall have the ordinance and a notice of its adoption published, if required

by this charter, state law or the ordinance, and made available to the public at a

reasonable price.

this charter, every adopted ordinance shall become effective immediately after its

adoption by the city council. All ordinances, resolutions, rules and regulations now in

force in the City, and not in conflict herewith, shall remain in force under this Charter

until altered, amended or repealed by the city council, after this charter shall take

effect.

(d) "Publish" Defined. As used in this section, the term "publish" means to print

in one or more newspapers of general circulation in the city: (1) The ordinance or a

brief summary thereof. or a caption thereof, and (2) the places where copies of it

have been filed and the times when they are available for public inspection and

purchase at a reasonable price.

Section 2.14. Emergency Ordinances.

To meet a public emergency affecting life, health, property or the public peace,

the city council may adopt one or more emergency ordinances, but such ordinances

may not levy taxes, grant, renew or extend a franchise, regulate the rate charged by

any public utility for its services or authorize the borrowing of money except as

provided in 3 5.07(b). An emergency ordinance shall be introduced in the form and

manner prescribed for ordinances generally except that it shall be plainly designated

as an emergency ordinance and shall contain, after the enacting clause, a

declaration stating that an emergency exists and describing it in clear and specific

terms. An emergency ordinance may be adopted with or without amendment or

rejected at the meeting at which it is introduced pursuant to Section 2.11 of this

Chapter, except that an affirmative vote of the greater of four (4) members or a

majority of those present and voting shall be required for adoption. After its adoption

the ordinance shall be published and printed as prescribed for other adopted

ordinances. It shall become effective upon adoption or at such later time as it may

specify. Every emergency ordinance except one made pursuant to 35.07(b) shall

automatically stand repealed as of the 61 st day following the date on which it was

adopted, but this shall not prevent re-enactment of the ordinance in the manner

specified in this section if the emergency still exists. An emergency ordinance may

also be repealed by adoption of a repealing ordinance in the same manner specified

in this section for adoption of emergency ordinances.

Section 2.15. Code of Technical Regulations.

The city council may adopt any standard code of technical regulations by

reference thereto in an adopting ordinance. The procedure and requirements

governing such an adopting ordinance shall be as prescribed for ordinances

generally except that:

(1) The requirements of 32.13 for distribution and filing of copies of the

ordinance shall be construed to include copies of the code of technical

regulations as well as of the adopting ordinance, and

(2) A copy of each adopted code of technical regulations as well as of the

adopting ordinance shall be authenticated and recorded by the city

secretary pursuant to 32.16(a).

Copies of any adopted code of technical regulations shall be made available by

the city secretary for distribution or for purchase at actual cost to the City.

Section 2.16. Authentication and Recording; Codification; Printing.

(a) Authentication and Recording. The city secretary shall authenticate by

signing and shall record in full in a properly indexed book kept for the purpose, all

ordinances and resolutions adopted by the city council.

(b) Codification. Within three years after adoption of this charter and at least

every five years thereafter, the city council shall provide for the preparation of a

general codification of all city ordinances and resolutions having the force and effect

of law. The general codification shall be adopted by the council by ordinance and

shall be printed promptly in bound or loose leaf form, together with this charter and

any amendments thereto, pertinent provisions of the constitution and other laws of

the State of Texas, and such code of technical regulations and other rules and

regulations as the council may specify. This compilation shall be known and cited

officially as "The Code of the City of Plainview, Texas." Copies ofthe code shall be

furnished to city officers, placed in libraries and public offices for free public

reference and made available for purchase by the public at actual cost to the City.

ordinance and resolution having the force and effect of law and each amendment to

this charter to be printed promptly following its adoption, and the printed ordinances,

resolutions, and charter amendments shall be distributed or sold to the public at

actual cost to the City. Following publication of the first Code of the City of

Plainview, Texas and at all times thereafter, the ordinances, resolutions, and charter

amendments shall be printed in substantially the same style as the code currently in

effect and shall be suitable in form for integration therein. The council shall make

such further arrangements as it deems desirable with respect to reproduction and

distribution of any current changes in or additions to the provisions of the constitution

CmDIPU/IWIIWCMRTIR

and other laws of the State of Texas, or the codes of technical regulations and other

rules and regulations included in the code.

Section 2.17. Training.

The city council, by ordinance, shall establish minimum training and continuing

education requirements for city council, and shall establish penalties for not

complying with those requirements, including removal from office.

Article Ill

CITY MANAGER

Section 3.01. Appointment and Qualifications.

The Mayor and City Council by five (5) affirmative votes shall appoint a city

manager for an indefinite term and fix the manger's compensation. The city

manager shall be appointed solely on the basis of executive and administrative

qualifications. The manager need not be a resident of the city or state at the time of

appointment, but must secure and maintain permanent residency within the City

within six (6).months of his/her initial employment. Failure to comply with residency

requirement will result in termination without severance pay. The City Council may

offer a contract to the City Manager, but said contract shall never exceed three (3)

years.

Section 3.02. Removal.

The city manager may be suspended by a resolution approved by five (5)

affirmative votes of the Mayor and City Council which shall set forth the reasons for

suspension and proposed removal. A copy of such resolution shall be served

immediately upon the city manager. The city manager shall have fifteen (15) days in

which to reply thereto in writing, and upon request, shall be afforded a public

hearing, which shall occur not earlier than ten (10) days nor later than fifteen (15)

days after such hearing is requested. After the public hearing, if requested, and after

full consideration, the city council by a majority vote of its total membership may

adopt a final resolution of removal. The city manager shall continue to receive full

salary until the effective date of a final resolution of removal. The City Manager is an

at-will employee.

Section 3.03. Acting City Manager.

By letter filed with the city secretary, the mayor and city council shall designate a

city officer or employee to exercise the powers and perform the duties of city

manager during the manager's temporary absence or disability. The mayor and city

council may revoke s.uch designation at any time and appoint another officer of the

city to serve until the city manager returns.

Section 3.04. Powers and Duties of the City Manager.

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The city manager shall be the chief administrative officer of the city, responsible

to the Council for the administration of all city affairs placed in the manager's charge

by or under this charter. The city manager shall:

{1) Appoint and, when necessary for the good of the service, suspend or remove

all city employees and appointive administrative officers provided for by or under this

charter, except as otherwise provided for by law, this charter or personnel rules

adopted pursuant to this charter. Director appointments shall be approved by the

city council before said director assumes his/her official duties. The city manager

may authorize any administrative officer subject to the manager's direction and

supervision to exercise these powers with respect to subordinates in that officer's

department, office or agency;

{2) Direct and supervise the administration of all departments, offices, and

agencies of the city, except as otherwise provided by this charter or by law;

{3) Attend all city council meetings. The city manager shall have the right to take

part in discussion but shall not have a vote;

{4) See that all laws, provisions of this charter and acts of the city council, subject

to enforcement by the city manager or by officers subject to the city manager's

direction and supervision, are faithfully executed;

{5) Submit the initial annual budget and capital program to the city council;

{6) Submit to the city council and make available to the public a complete report

on the finances and administrative activities of the city as of the end of each fiscal

year;

{7) Make such other reports as the city council may require concerning the

operations of city departments, offices, and agencies subject to the city manager's

direction and supervision;

{8) Keep the city council fully advised as to the financial condition and future

needs of the city;

{9) Make recommendations to the city council concerning the affairs of the city;

{1 0) Provide staff support services for the mayor and councilmembers; and

{11) Perform such other duties as are specified in this charter or may be required

by the city council.

Article IV

DEPARTMENTS, OFFICES, AND AGENCIES

Section 4.01. General Provisions.

{a) Creation of Departments. The city council may establish city departments,

offices, or agencies in addition to those created by this charter and may prescribe

the functions of all departments, offices, and agencies, except that no function

assigned by this charter to a particular department, office or agency may be

discontinued or, unless this charter specifically so provides, assigned to any other.

{b) Direction by City Manager. All departments, offices, and agencies under the

direction and supervision of the city manager shall be administered by an officer

appointed by and subject to the direction and supervision of the manager. With the

consent of the city council, the city manager may serve as the head of one or more

, such departments, offices or agencies or may appoint one person as the head of two

or more of them.

Section 4.02. Personnel System.

(a) At-will employer. The City of Plainview is an at-will employer.

(b) Personnel policies. The city manager shall approve, and amend from

time to time, the personnel policies of the city.

Section 4.03. Legal Officer.

There shall be a legal officer of the city appointed by the city council. The legal

officer shall serve as chief legal advisor to the council, the city manager, and all city

departments, offices, and agencies, shall represent the city in all legal proceedings

and shall perform any other duties prescribed by the charter or by ordinance. For

the purposes of this charter a legal officer is defined as an attorney who has been

duly licensed to practice law within the State of Texas whose title may be city

counselor, city attorney, corporation counsel, or municipal attorney. The legal officer

is an at will employee of the city council.

Section 4.04. Municipal Court

A municipal court judge shall be appointed by the city manager, subject to the

approval of the city council, to serve a term of two years, but subject to removal by

the city manager at any time.

Article V

FINANCIAL PROCEDURES

Section 5.01. Fiscal Year.

The fiscal year of the city shall begin on the first day of October and

end on the last day of September.

Section 5.02. Submission of Initial Budget and Budget Message.

On or before the first day of July of each year, the city manager shall submit to

the city council an initial budget for the ensuing fiscal year and an accompanying

message.

Section 5.03. Budget Message.

The city manager's message shall explain the budget both in fiscal terms and in

terms of the work programs. It shall outline the proposed financial policies of the city

for the ensuing fiscal year, describe the important features of the budget, indicate

any major changes from the current year in financial policies, expenditures, and

revenues together with the reasons for such changes, summarize the city's debt

CmDFPU/-EWCIIMTBI

position and include such other material as the city manager deems desirable.

Section 5.04. Budget.

The budget shall provide a complete financial plan of all city funds and activities

for the ensuing fiscal year and, except as required by law or this charter, shall be in

such form as the city manager deems desirable or the city council may require. The

budget shall begin with a clear, general summary of its contents, shall show in detail

all estimated income, indicating the proposed property tax levy, and all proposed

expenditures, including debt service, for the ensuing fiscal year, and shall be so

arranged as to show comparative figures for actual and estimated income and

expenditures of the current fiscal year and actual income and expenditures of the

preceding fiscal year. It shall indicate in separate sections:

(1) The proposed goals and objectives and expenditures for current operations

during the ensuing fiscal year, detailed for each fund by organizational unit, and

program, purpose, or activity, and the method of financing such expenditures.

(2) Proposed capital expenditures during the ensuing fiscal year, detailed for

each fund by organizational unit when practicable, and the proposed method of

financing each such capital expenditure; and

(3) The anticipated income and expense and profit and loss for the ensuing

year for each utility or other enterprise fund operated by the city.

For any fund, the total of proposed expenditures shall not exceed the total of

estimated income plus carried forward fund balance, exclusive of reserves.

Section 5.05. City Council Action on Budget.

(a) Notice and Hearing. The city council shall publish in one or more

newspapers of general circulation in the city the general summary of the budget and

a notice stating:

(1) The times and places where copies of the message and budget are

available for inspection by the public; and

(2) The time and place, not less than two weeks after such publication, for a

public hearing on the budget.

(b) Amendment Before Adoption. After public hearing, the city council may

adopt the budget with or without amendment. In amending the budget, it may add or

increase programs or amounts and may delete or decrease any programs and

amounts, except expenditures required by law or for debt service or for an estimated

cash deficit, provided that no amendment to the budget shall increase the authorized

expenditures to an amount greater than total estimated income plus carried forward

fund balance, exclusive of reserves.

the month of the fiscal year currently ending. If it fails to adopt the budget by this

date, the budget proposed by the city manager shall go into effect.

Section 5.06. Appropriation and Revenue Ordinances.

To implement the adopted budget, the city council shall adopt, prior to

the beginning of the ensuing fiscal year:

(a) an appropriation ordinance making appropriations by department or major

organizational unit and authorizing a single appropriation for each program.

(b) a tax levy ordinance authorizing the property tax levy or levies and setting

the tax rate or rates; and

rates or other features of existing taxes or other revenue sources.

Section 5.07. Amendments after Adoption.

(a) Supplemental Appropriations. If during the fiscal year the city manager

certifies that there are available for appropriation revenues in excess of those

estimated in the budget, the city council by ordinance may make supplemental

appropriations for the year up to the amount of such excess.

(b) Emergency Appropriations. To meet a public emergency affecting life,

health, property, or the public peace, the city council may make emergency

appropriations. Such appropriations may be made by emergency ordinance in

accordance with the provision of 3 2.11. To the extent that there are no available

unappropriated revenues or a sufficient fund balance to meet such appropriations,

the council may, by such emergency ordinance, authorize the issuance of

emergency notes, which may be renewed from time to time, but the emergency

notes and renewals of any fiscal year shall be paid not later than the last day of the

fiscal year next succeeding that in which the emergency appropriation was made.

probable to the city manager that the revenues or fund balances available will be

insufficient to finance the expenditures for which appropriations have been

authorized, the manager shall report to the city council without delay, indicating the

estimated amount of the deficit, any remedial action taken by the manager and

recommendations as to any other steps to be taken. The council shall then take

such further action as it deems necessary to prevent or reduce any deficit and, for

that purpose, it may by ordinance reduce one or more appropriations.

(d) Transfer of Appropriations. At any time during the fiscal year, the city

council may by resolution transfer part or all of the unencumbered appropriation

balance from one department or major organizational unit to the appropriation for

other departments or major organizational units. The manager may transfer part or

all of any unencumbered appropriation balances among programs within a

department or organizational unit and shall report such transfers to the council in

writing in a timely manner.

(e) Limitations; Effective Date. No appropriation for debt service may be

reduced or transferred, and no appropriation may be reduced below any amount

required by law to be appropriated or by more than the amount of the unencumbered

' balance thereof. The aggregate debt of the City of Plainview shall not exceed five

C/TTIFPU/IBEWC/118TIR

percent (5%) of the aggregate ad valorem taxable value of the City of Plainview as

ascertained by the tax assessor. No issuance of Certificates of Obligation or other

debts, however designated, which are payable or guaranteed with tax revenue from

any source shall exceed two percent (2%) of the aggregate ad valorem taxable value

of the City as ascertained by the tax assessor, without voter approval. The

supplemental and emergency appropriations and reduction or transfer or

appropriations authorized by this section may be made effective immediately upon

adoption.

Section 5.08. Lapse of Appropriations.

Every appropriation, except an appropriation for a capital expenditure, shall

lapse at the close of the fiscal year to the extent that it has not been expended or

encumbered. An appropriation for a capital expenditure shall continue in force until

expended, revised, or repealed. The purpose of any such appropriation shall be

deemed abandoned if three years pass without any disbursement from or

encumbrance of the appropriation.

Section 5.09. Administration of the Budget.

The city council shall provide by ordinance the procedures for administering the

budget.

Section 5.1 0. Overspending of Appropriations Prohibited.

No payment shall be made or obligation incurred against any allotment or

appropriation except in accordance with appropriations duly made and unless the

city manager or the manager's designee first certifies that there is a sufficient

unencumbered balance in such allotment or appropriation and that sufficient funds

therefrom are or will be available to cover the claim or meet the obligation when it

becomes due and payable. Any authorization of payment or incurring of obligation in

violation of the provisions of this charter shall be void and any payment so made

illegal. A violation of this provision shall be cause for removal of any officer who

knowingly authorized or made such payment or incurred such obligation. Such

officer may also be liable to the city for any amount so paid. Except where prohibited

by law, however, nothing in this charter shall be construed to prevent the making or

authorizing of payments or making of contracts from capital improvements to be

financed wholly or partly by the issuance of bonds or to prevent the making of any

contract or lease providing for payments beyond the end of the fiscal year, but only if

such action is made or approved by ordinance.

Section 5.11. Capital Program.

(a) Submission to City Council. The city manager shall prepare and submit to

the city council a five-year capital program no later than the final date for submission

of the budget.

(b) Contents. The capital program shall include:

CmiiFPU/RIIWCIIAITEB

(1) A clear general summary of its contents;

(2) A list of all capital improvements and other capital expenditures which are

proposed to be undertaken during the five fiscal years next ensuing, with appropriate

supporting information as to the necessity for each;

(3) Cost estimates and recommended time schedules for each improvement

or other capital expenditure;

(4) Method of financing, upon which each capital expenditure is to be reliant;

and

(5) The estimated annual cost of operating and maintaining the facilities to be

constructed or acquired.

The above shall be revised and extended each year with regard to capital

improvements still pending or in process of construction or acquisition.

Section 5.12. City Council Action on Capital Program.

(a) Notice and Hearing. The city council shall publish, in one or more

newspapers of general circulation in the city, the general summary of the capital

program and a notice stating:

( 1) The times and places where copies of the capital program are available for

inspection by the public; and

(2) The time and place, not less then two weeks after such publication, for a

public hearing on the capital program.

(b) Adoption. The city council by resolution shall adopt the capital program with

or without amendment after the public hearing and on or before the last day of the

month of the current fiscal year.

Section 5.13. Public Records.

Copies of the budget, capital program, and appropriation and revenue ordinances

shall be public record and shall be made available to the public at suitable places in

the city.

Section 5.14. Retirement and/or Pension Funds

The City of Plainview shall not be financially responsible for City of Plainview

and/or employee retirement contributions lost by a fund which is not directly

managed by the City Council.

Article VI

ELECTIONS

Section 6.01. City Elections.

(a) Regular Elections. The regular city election shall be held in May on even

numbered years.

(b) Registered Voter Defined. All citizens legally registered under the

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constitution and laws of the State of Texas to vote in the city shall be registered

voters of the city within the meaning of this charter.

State of Texas shall apply to the elections held under this charter. All elections

provided for by the charter shall be conducted by the city secretary. Candidates

shall run for office without party designation. For the conduct of city elections, for the

prevention of fraud in such elections and for the recount of ballots in cases of doubt

or fraud, the city council shall adopt ordinances consistent with law and this charter,

and the city secretary may adopt further regulations consistent with law and this

charter and the ordinances of the council. Such ordinances and regulations

pertaining to elections shall be publicized in the manner of city ordinances generally.

Section 6.02. Council Districts; Adjustments of Districts.

(a) Number of Districts. There shall be seven (7) city council districts.

(b) Districting Commission; Composition; Appointment; Terms; Vacancies;

Compensation.

(1) There shall be a districting commission consisting of nine (9) members.

The City Council shall appoint six (6) members. These six (6) members shall, with

the affirmative vote of at least four (4), choose three (3) more members. The

commission shall select is own chairperson.

(2) No member of the commission shall be employed by the city or hold any

other elected or appointed position in the city.

(3) The City Council shall appoint the commission no later than one year and

five months before the first general election of the city council after each federal

decennial census. The commission's terms shall end upon adoption of a districting

plan, as set forth in section 3 6.02(c).

(4) In the event of a vacancy on the Commission by death, resignation or

otherwise, the City Council shall appoint a new member to serve the balance of the

term remaining.

(5) No member of the districting commission shall be removed from office by

the City Council except for cause and upon notice and hearing.

(6) The members of the commission shall serve without compensation except

that each member shall be allowed actual and necessary expenses to be audited in

the same manner as other city charges.

(7) The commission may hire or contract for necessary staff assistance and

may require agencies of city government to provide technical assistance. The

commission shall have a budget as provided by the city council.

Approval of Plan.

(1) Following decennial census, the commission shall consult the city council

_ and shall prepare a plan for dividing the city into districts for the election of

councilmembers. In preparing the plan, the commission shall be guided by the

criteria set forth in 3 6.02(d). The report on the plan shall include a map and

/JITYDFPU/IMIIICI/AITII

description of districts recommended.

(2) The commission shall hold one or more public hearings not less than one

month before it submits the plan to the City Council. The commission shall make its

plan available to the public for inspection and comment not less than one month

before its public hearing.

(3) The commission shall submit its plan to the City Council not less than one

year before the first general election of the city council after each decennial census.

(4) The plan shall be deemed adopted by the City Council unless disapproved

within three weeks by the vote of the majority of all members of the city council. If

the city council fails to adopt the plan, it shall return the plan to the commission with

its objections, and with the objections of individual members of the council.

(5) Upon rejection of its plan, the commission shall prepare a revised plan and

shall submit such revised plan to the city council no later than nine (9) months before

the first general election of the city council after such decennial census. Such

revised plan shall be deemed adopted by the city council unless disapproved within

two weeks by the vote of two-thirds (2/3) of all the members of the city council, or

unless by two-thirds (2/3) of all its members the city council votes to file a petition in

the District Court, Hale County, Texas, for a determination that the plan fails to meet

the requirements of this charter. The city council shall file its petition no laterthan ten

(1 0) days after its disapproval of the plan. Upon a final determination upon appeal, if

any, the plan shall be deemed adopted by the city council and the commission shall

deliver the plan to the city secretary. The plan delivered to the city secretary shall

include a map and description of the districts.

(6) If in any year population figures are not available at least one year and five

months before the first general election following the decennial census, the City

Council may by ordinance shorten the time period provided for districting

commission action in subsection (2),(3),(4), and (5) of this section.

(d) Districting Plan; Criteria. In preparation of its plan for dividing the city into

districts for the election of council members, the commission shall apply the following

criteria which, to the extent practicable, shall be applied and given priority in the

order in which they are herein set forth.

(1) Districts shall be equal in population except where deviation from equality

result from the application of the provisions hereinafter set forth, but no such

deviation may exceed five percent (5%) of the average population for all city council

districts according to the figures available from the most recent census.

(2) No city block shall be divided in the formation of districts.

(e) Effect of Enactment. The new city council districts and boundaries as of the

date of enactment shall supersede previous council districts and boundaries for all

purposes of the next regular city election, including nominations. The new districts

and boundaries shall supersede previous districts and boundaries for all other

purposes as of the date on which all councilmembers elected at that regular city

election take office.

Article VII

GENERAL PROVISIONS

Section 7 .01. Conflicts of Interest; Ethics

Conflicts of Interest. The use of public office for private gain is prohibited. The

city council shall implement this prohibition by ordinance. Regulations to this end

shall include but are not limited to: acting in an official capacity on matters in which

the official has a private financial interest clearly separate from that of the general

public; the acceptance of gifts and other things of value; acting in a private capacity

on matters dealt with as a public official; the use of confidential information; and

appearances by city officials before other city agencies on behalf of private interests.

This ordinance shall provide for reasonable public disclosure of finances by officials

with major decision making authority over monetary expenditures and contractual

matters and, insofar as permissible under state law, shall provide for penalties.

Section 7.02. Prohibitions.

(a) Activities Prohibited.

(1) No person shall be appointed to or removed from, or in any way favored

or discriminated against with respect to any city position or appointive city

administrative office because of race, gender, age, disability, religion, country of

origin or political affiliation.

(2) No.person shall willfully make any false statement, certificate, mark, rating

or report in regard to any test, certification or appointment under the provisions of

this charter or the rules and regulations made thereunder, or in any manner commit

or attempt to commit any fraud preventing the impartial execution of such provisions,

rules and regulations.

(3) No person who seeks appointment or promotion with respect to any city

position or appointive city administrative office shall directly or indirectly give, render

or pay any money, service or other valuable thing to any person for or in connection

with her or his test, appointment, proposed appointment, promotion or proposed

promotion.

(4) No city employee shall knowingly or willfully make, solicit or receive any

contribution to the campaign funds of any political party or committee to be used in a

city election or to campaign funds to be used in support of or opposition to any

candidate for election to city office or city ballot issue. Further, no city employee

shall knowingly or willfully participate in any aspect of any political campaign on

behalf of or opposition to any candidate for city office. This section shall not be

construed to limit any person's right to exercise rights as a citizen to express

opinions or to cast a vote nor shall it be construed to prohibit any person from active

participation in political campaigns at other level of government.

(b) Penalties. Any person found guilty of a violation of this section shall be

ineligible for a period of five (5) years following such finding to hold any city office or

position and, if an officer or employee of the city, shall immediately forfeit her or his

office or position. The city council shall establish by ordinance such further penalties

as it may deem appropriate.

Section 7.03. Annexation

The boundaries and limits of the City of Plainview may be hereafter changed by

annexation or disannexation in the manner provided in Chapter 43 of the Texas

Local Government Code.

Article VIII

CHARTER AMENDMENT

Section 8.01. Proposal of Amendment.

Amendments to this charter may be framed and proposed in the manner provided

bylaw.

Article IX

TRANSITION/SEVERABILITY PROVISION

Section 9.01. Officers and Employees.

Rights and Privileges Preserved. Nothing in this charter except as otherwise

provided shall affect or impair the rights or privileges of persons who are city officers

or employees at the time of its adoption.

Section 9.02. State and Municipal Laws.

In General. All city ordinances, resolutions, orders, and regulations which are in

force when this charter becomes fully effective are repealed to the extent that they

are inconsistent or interfere with the effective operation of this charter or of

ordinances or resolutions adopted pursuant thereto. To the extent that the

constitution and laws of the State of Texas permit, all laws relating to or affecting this

city or its agencies, officers or employees which are in force when this charter

becomes fully effective are superseded to the extent that they are inconsistent or

interfere with the effective operation of this charter or of ordinances or resolutions

adopted pursuant thereto.

Section 9.03. Schedule.

(a) First Election. At the time of its adoption, this charter shall be in effect to the

extent necessary in order that the first election of members of the city council may be

conducted in accordance with the provisions of this charter.

Section 9.04. Severability.

If any provision of this charter is held invalid, the other provision of the charter

shall not be affected thereby. If the application of the charter or any of its provisions

to any person or circumstance is held invalid, the application of the charter and its

Dm6FI'UIIWIEWC/161Tll

provisions to other persons or circumstances shall not be affected thereby.

Article X

INITIATIVE, REFERENDUM, RECALL

Section 10.01. General Authority.

The powers of initiative and referendum are hereby reserved to the electors of

the city. The provisions of the election law of the State of Texas, as they currently

exist or may hereafter be amended or superseded, shall govern the exercise of the

powers of initiative and referendum under this charter.

A. Initiative. The qualified voters of the city shall have the power to propose

ordinances to the city council and, if the council fails to adopt an ordinance so

proposed without any change in substance, to adopt or reject said ordinance at a city

election, provided that such power shall not extend to the budget, or capital program

or any ordinance relating to appropriation of money, levy of taxes, user fees or

salaries of city officers or employees.

Such initiative power may be used to enact a new ordinance or to repeal or amend

sections of an existing ordinance.

B. Ref~rendum: The qualified voters of the city shall have the power to require

reconsideration by the city council of any adopted ordinance and, if the council fails

to repeal any ordinance so reconsidered, to approve or reject it at a city election,

provided that such power shall not extend to the budget or capital program or any

properly enacted emergency ordinance, ordinance relating to appropriation of money

or levying of taxes or ordinance relating to the control of armed or violent

insurrection, revolt, rebellion or riot.

Section 10.02. Initiation of Proceedings; Petitioners' Committee; Affidavit.

Any ten (1 0) qualified voters may begin initiative or referendum proceedings by

filing with the city secretary an affidavit stating they constitute the petitioners'

committee and will be responsible for circulating the petition and filing it in proper

form; stating their names and addresses and specifying the address to which all

notices to the committee are to be sent, and setting out in full the proposed initiative

ordinance or the ordinance sought to be reconsidered.

Immediately after the affidavit ofthe petitioners' committee is filed, the city secretary

shall issue the appropriate petition blanks to the petitioners' committee.

After the affidavit of the petitioners' committee has been filed, the ordinance sought

to be amended or repealed shall not be repealed, or amended or re-enacted by the

city council unless:

A. The action taken by the city council is that which the petition requests, or

B. The petition has not been filed within the prescribed time limit, or

C. There is a final determination of the insufficiency of the petition, or

D. The petition is withdrawn by the petitioners' committees, or

E. One year has elapsed since the city council or voter action has been taken on

the petition, or

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F. The ordinance sought to be amended or repealed relates to the control of

insurrection or riot.

Section 10.03. Petitions.

(a) Number of signatures. Initiative and referendum petitions must be signed

by currently qualified voters of the city equal in number to at least ten percent (1 0%)

of the current registered voters.

(b) Form and Content: All papers of petition shall be uniform in size and style

and shall be assembled as one instrument for filing. To be certified, each signature

shall be the same as the name of a voter appearing on the current certified list of

voter registrations, shall have been personally signed by such voter in ink, and shall

be followed by the address of the person signing. Petitions shall contain or have

attached thereto throughout their circulation the full text of the ordinance proposed or

sought to be reconsidered.

attached to it an affidavit executed by the circulator thereof stating that she/he

personally circulated the paper, the number of signatures thereon, that all the

signatures were affixed in her/his presence, that she/he believes them to be the

genuine signatures of the persons whose names they purport to be and that each

signer had an opportunity before signing to read the full text of the ordinance

proposed or sought to be reconsidered.

(d) Time for Filing Petitions: Referendum petitions must be initiated within

thirty (30) days after adoption by the city council of the ordinance sought to be

reconsidered. Initiative petitions must be filed within thirty (30) days after issuance of

the appropriate petition blanks to the petitioners' committee. Additional time as

specified in Section 10.04(e}, shall be allowed for amending petitions.

Section 10.04. Determination of Sufficiency.

(a) Certificate of city secretary: Within ten (1 0) working days after the petition

is filed, the city secretary shall complete a certificate as to its sufficiency, specifying,

if it is insufficient, the particulars wherein it is defective and shall immediately upon

completion of certification send a copy of the certificate to the petitioners' committee

by registered mail.

(b) Sufficient Petition, Final Determination: If the petition is certified sufficient,

the city secretary shall present the certificate to the city council at the next regularly

scheduled council meeting and the certificate shall then be a final determination as

to the sufficiency of the petition.

insufficient, and the petitioners' committee does not elect to amend or request

council review under sub-sections (d) and (e) of this section within the time required,

the city secretary shall present a certificate to the city council at the next regularly

scheduled council meeting which shall be a final determination of the sufficiency of

the petition.

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(d) Insufficient Petition, Appeal: If a petition has been certified insufficient and

the petitioners• committee does not file notice of intention to amend it as in Section

10.04(e), the committee may, within two working days after receiving the copy of

such certificate, file a request that it be reviewed by the city council. The city council

shall review the certificate at its next meeting following the filing of such request and

approve or disapprove it, and the Council•s determination shall then be a final

determination as to the sufficiency of the petition.

(e) Insufficient Petition, Amending: A petition certified insufficient for lack of

required number of valid signatures may be amended once if the petitioners•

committee files a notice of intention to amend it with the city secretary within two (2)

working days after receiving the copy of her/his certificate, and files a supplementary

petition with additional names within two weeks after receiving the copy of such

certificate. Such supplementary petition shall comply with the requirements of

Sections 10.03 (b) and (c).

Within five (5) working days after an amended petition is filed, the city secretary shall

complete a certificate as to the sufficiency of the petition as amended and shall

within twenty-four (24) hours send a copy of such certificate to the petitioners•

committee by registered mail as in the case of an original petition. The final

determination as to the sufficiency of an amended petition shall be determined in the

same manner as prescribed for original petitions in Sections 10.04 (b), (c) and (d),

and no petition, once amended, may be amended again.

(f) Court Review; New Petition: A final determination as to the sufficiency of a

petition shall be subject to review in a county court of record and higher. A final

determinatiqn of insufficiency, even if sustained upon court review, shall not

prejudice the filing of a new petition of the same purpose.

Section 10.05. Referendum Petitions; Suspension of Effect of Ordinance.

When a referendum petition is filed with the city secretary, the ordinance sought

to be reconsidered shall be suspended from taking effect. Such suspension shall

terminate when:

(a) there is a final determination of insufficiency of the petition, or

(b) the petitioner•s committee withdraws the petition, or

(d) the vote of the people in a referendum election determines whether the

ordinance sought to be repealed is repealed or is sustained and the election results

are certified by the election officials.

All action previously taken under such ordinance or resolution shall be

suspended and its legality or validity determined by the final disposition of the

referendum petition.

Section 10.06. Action on Petitions.

(a) Action by Council: The city council shall promptly consider the proposed

initiative ordinance in the manner prescribed for enacting ordinances or reconsider

the referred ordinance by voting its repeal. Within sixty (60) days after the date the

initiative or referendum petition has been finally determined sufficient the city council

shall either (1) adopt a proposed initiative ordinance without any change in

substance, or (2) repeal a referred ordinance, or (3) call an election on the proposed

or referred ordinance, said election to be held not later than thirty (30) days from the

date called.

(b) Submission to Voters: The vote of the city on a proposed or referred

ordinance shall be held not later than thirty (30) days from the date called by council,

except that when a regular city election is to be held within one hundred twenty (120)

days, but not less than thirty (30) days, after the final council vote, the vote on the

ordinance shall be held at the same time as the regular city election.

Copies of the proposed or referred ordinance shall be made available at the polls

and shall also be made available at the city secretary•s office for fifteen (15) days

immediately preceding the election and shall be posted atthe regular posting places

for fifteen (15) days immediately preceding the election.

withdrawn at any time prior to the twentieth (2oth) day preceding the day scheduled

for a vote of the city by filing with the city secretary a request for withdrawal signed

by at least six members of the petitioners• committee. Upon filing of such request

the petition shall have no further force or effect and all proceedings thereon shall be

terminated.

Section 10.07. Results of Election.

(a) Initiative: If a majority of the qualified electors voting on a proposed initiative

ordinance vote in its favor, it shall be considered adopted upon certification of the

election results and shall be treated in all respects in the same manner as

ordinances of the same kind adopted by the city council. If conflicting ordinances

are approved at the same election, the one receiving the greatest number of

affirmative votes shall prevail to the extent of such conflict.

(b) Limitation of Council Repeal: The city council may not repeal or amend

the initiated ordinance for one (1) year after the effective date and then only by the

affirmative vote of five (5) members of the city council.

ordinance vote against it, it shall be considered repealed upon certification of the

election results.

Section 10.08. Power of Recall.

The qualified voters shall have the power to recall any elected official of the city

on grounds of incompetency, noncompliance with this charter, misconduct or

malfeasance in office. Such power shall be exercised by filing with the city secretary

a petition, signed by currently qualified voters of the city equal in number to at least

twenty percent (20%) of the total number of qualified voters registered to vote at the

last regular city election, per district effected, demanding the removal of such elected

CmDFPU/ntEWCMITEB

official. The petition shall be signed and verified in the manner required for an

initiative petition.

Section 10.09. Recall Election.

The provisions regulating initiation, certification, amendment and withdrawal of

initiative petitions shall apply to recall petitions. If the petition is certified by the city

secretary to be sufficient, the city council shall order an election forthwith to

determine whether such officer shall be recalled.

Section 10.10. Results of Recall Election.

If a majority of the votes cast at a recall election shall be against removal of the

elected official named on the ballot, she/he shall continue in office. If the majority of

the votes cast at the election are for the removal of the elected official named on the

ballot, the city council shall immediately declare her/his office vacant and such

vacancy shall be filled in accordance with the provisions of this charter for the filling

of vacancies. An elected official thus removed shall not be a candidate to succeed

herself/himself.

Section 10.11. Limitation on Recall.

No elected official shall be subjected to more than one (1) recall in a twelve (12)

month period.

The elected official whose removal is sought may, within five (5) days after such

recall petition has been presented to the city council, request that a public hearing be

held to permit her/him to present facts pertinent to the charges specified in the recall

petition, In this event, the city council shall order such public hearing to be held, not

less than five (5) days or more than fifteen (15) days after receiving such request for

a public hearing.

Section 10.12. Failure of City Council to Call an Election.

In case all of the requirements of this charter shall have been met and the city

council fails or refuses to receive the recall petition, or order such recall election, or

discharge other duties imposed upon said city council by the provisions of this

charter with reference to such recall, then the County Judge of Hale County, Texas,

shall discharge any such duties herein provided to be discharged by the city

secretary or by the city council. In addition, any qualified voter in the city may seek

judicial relief in the District Court of Hale County, Texas, to have any of the

provisions of this charter pertaining to recall carried out by the proper official.

APPENDIX 6

2/13/2015 THE TEXAS CONSTITUTION ARTICLE 11. MUNICIPAL CORPORATIONS

THE TEXAS CONSTITUTION

ARTICLE 11. MUNICIPAL CORPORATIONS

Sec. 1. COUNTIES AS LEGAL SUBDIVISIONS. The several counties of

this State are hereby recognized as legal subdivisions of the State.

Sec. 2. JAILS, COURTHOUSES, BRIDGES, AND ROADS. The

construction of jails, courthouses and bridges and the laying out,

construction and repairing of county roads shall be provided for by

general laws.

(Amended Nov. 2, 1999.) (TEMPORARY TRANSITION PROVISIONS for Sec. 2:

See Appendix, Note 1.)

Sec. 3. SUBSCRIPTIONS TO CORPORATE CAPITAL; DONATIONS; LOAN OF

CREDIT. No county, city, or other municipal corporation shall

hereafter become a subscriber to the capital of any private

corporation or association, or make any appropriation or donation to

the same, or in anywise loan its credit; but this shall not be

construed to in any way affect any obligation heretofore undertaken

pursuant to law or to prevent a county, city, or other municipal

corporation from investing its funds as authorized by law.

(Amended Nov. 7, 1989.)

Sec. 4. CITIES AND TOWNS WITH POPULATION OF 5,000 OR LESS;

CHARTERED BY GENERAL LAW; TAXES; FINES, FORFEITURES, AND PENALTIES.

Cities and towns having a population of five thousand or less may be

chartered alone by general law. They may levy, assess and collect

such taxes as may be authorized by law, but no tax for any purpose

shall ever be lawful for any one year which shall exceed one and one

half per cent of the taxable property of such city; and all taxes

shall be collectible only in current money, and all licenses and

occupation taxes levied, and all fines, forfeitures and penalties

accruing to said cities and towns shall be collectible only in current

money.

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(Amended Aug. 3, 1909, and Nov. 2, 1920.)

Sec. 5. CITIES OF MORE THAN 5,000 POPULATION; ADOPTION OR

AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS. (a) Cities having

more than five thousand (5000) inhabitants may, by a majority vote of

the qualified voters of said city, at an election held for that

purpose, adopt or amend their charters. If the number of inhabitants

of cities that have adopted or amended their charters under this

section is reduced to five thousand (5000) or fewer, the cities still

may amend their charters by a majority vote of the qualified voters of

said city at an election held for that purpose. The adoption or

amendment of charters is subject to such limitations as may be

prescribed by the Legislature, and no charter or any ordinance passed

under said charter shall contain any provision inconsistent with the

Constitution of the State, or of the general laws enacted by the

Legislature of this State. Said cities may levy, assess and collect

such taxes as may be authorized by law or by their charters; but no

tax for any purpose shall ever be lawful for any one year, which shall

exceed two and onehalf per cent. of the taxable property of such

city, and no debt shall ever be created by any city, unless at the

same time provision be made to assess and collect annually a

sufficient sum to pay the interest thereon and creating a sinking fund

of at least two per cent. thereon, except as provided by Subsection

(b). Furthermore, no city charter shall be altered, amended or

repealed oftener than every two years.

(b) To increase efficiency and effectiveness to the greatest

extent possible, the legislature may by general law authorize cities

to enter into interlocal contracts with other cities or counties

without meeting the assessment and sinking fund requirements under

Subsection (a).

(Amended Aug. 3, 1909, Nov. 5, 1912, Nov. 5, 1991, and Nov. 8, 2011.)

Sec. 6. (Repealed Nov. 2, 1999.)

(TEMPORARY TRANSITION PROVISIONS for Sec. 6: See Appendix, Note 1.)

Sec. 7. COUNTIES AND CITIES ON GULF OF MEXICO; TAX FOR SEA

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WALLS, BREAKWATERS, AND SANITATION; BONDS; CONDEMNATION OF RIGHT OF

WAY. (a) All counties and cities bordering on the coast of the Gulf

of Mexico are hereby authorized upon a vote of the majority of the

qualified voters voting thereon at an election called for such purpose

to levy and collect such tax for construction of sea walls,

breakwaters, or sanitary purposes, as may now or may hereafter be

authorized by law, and may create a debt for such works and issue

bonds in evidence thereof. But no debt for any purpose shall ever be

incurred in any manner by any city or county unless provision is made,

at the time of creating the same, for levying and collecting a

sufficient tax to pay the interest thereon and provide at least two

per cent (2%) as a sinking fund, except as provided by Subsection (b);

and the condemnation of the right of way for the erection of such

works shall be fully provided for.

(b) To increase efficiency and effectiveness to the greatest

extent possible, the legislature may by general law authorize cities

or counties to enter into interlocal contracts with other cities or

counties without meeting the tax and sinking fund requirements under

Subsection (a).

(Amended Nov. 8, 1932, Nov. 6, 1973, Nov. 6, 2001, and Nov. 8, 2011.)

(TEMPORARY TRANSITION PROVISION for Sec. 7: See Appendix, Note 3.)

Sec. 8. DONATION OF PORTION OF PUBLIC DOMAIN TO AID IN

CONSTRUCTION OF SEA WALLS OR BREAKWATERS. The counties and cities on

the Gulf Coast being subject to calamitous overflows, and a very large

proportion of the general revenue being derived from those otherwise

prosperous localities, the Legislature is especially authorized to aid

by donation of such portion of the public domain as may be deemed

proper, and in such mode as may be provided by law, the construction

of sea walls, or breakwaters, such aid to be proportioned to the

extent and value of the works constructed, or to be constructed, in

any locality.

Sec. 9. PROPERTY EXEMPT FROM FORCED SALE AND FROM TAXATION. The

property of counties, cities and towns, owned and held only for public

purposes, such as public buildings and the sites therefor, fire

engines and the furniture thereof, and all property used, or intended

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for extinguishing fires, public grounds and all other property devoted

exclusively to the use and benefit of the public shall be exempt from

forced sale and from taxation, provided, nothing herein shall prevent

the enforcement of the vendors lien, the mechanics or builders lien,

or other liens now existing.

Sec. 10. (Repealed Aug. 5, 1969.)

Sec. 11. TERM OF OFFICE EXCEEDING TWO YEARS IN HOME RULE AND

GENERAL LAW CITIES; VACANCIES. (a) A Home Rule City may provide by

charter or charter amendment, and a city, town or village operating

under the general laws may provide by majority vote of the qualified

voters voting at an election called for that purpose, for a longer

term of office than two (2) years for its officers, either elective or

appointive, or both, but not to exceed four (4) years; provided,

however, that tenure under Civil Service shall not be affected hereby;

provided, however, that such officers, elective or appointive, are

subject to Section 65(b), Article XVI, of this Constitution, providing

for automatic resignation in certain circumstances, in the same manner

as a county or district officer to which that section applies.

(b) A municipality so providing a term exceeding two (2) years

but not exceeding four (4) years for any of its noncivil service

officers must elect all of the members of its governing body by

majority vote of the qualified voters in such municipality.

shall not be filled by appointment but must be filled by majority vote

of the qualified voters at a special election called for such purpose

within one hundred and twenty (120) days after such vacancy or

vacancies occur except that the municipality may provide by charter or

charter amendment the procedure for filling a vacancy occurring on its

governing body for an unexpired term of 12 months or less.

(Added Nov. 4, 1958; amended Nov. 6, 2001; Subsec. (b) amended and (c)

added Nov. 5, 2013.) (TEMPORARY TRANSITION PROVISION for Sec. 11: See

Appendix, Note 3.)

Sec. 12. EXPENDITURES FOR RELOCATION OR REPLACEMENT OF

SANITATION SEWER OR WATER LATERALS ON PRIVATE PROPERTY. The

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legislature by general law may authorize a city or town to expend

public funds for the relocation or replacement of sanitation sewer

laterals or water laterals on private property if the relocation or

replacement is done in conjunction with or immediately following the

replacement or relocation of sanitation sewer mains or water mains

serving the property. The law must authorize the city or town to

affix, with the consent of the owner of the private property, a lien

on the property for the cost of relocating or replacing the laterals

on the property and must provide that the cost shall be assessed

against the property with repayment by the property owner to be

amortized over a period not to exceed five years at a rate of interest

to be set as provided by the law. The lien may not be enforced until

after five years have expired since the date the lien was affixed.

(Added Nov. 8, 1983; amended Nov. 5, 1985.)

Sec. 13. CLASSIFICATION OF MUNICIPAL FUNCTIONS. (a)

Notwithstanding any other provision of this constitution, the

legislature may by law define for all purposes those functions of a

municipality that are to be considered governmental and those that are

proprietary, including reclassifying a function's classification

assigned under prior statute or common law.

(b) This section applies to laws enacted by the 70th

Legislature, Regular Session, 1987, and to all subsequent regular or

special sessions of the legislature.

(Added Nov. 3, 1987.)

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APPENDIX 7

CITY OF PLAINVIEW

PERSONNEL POLICY

Incorporates all Personnel

Policy Amendments through

March 9, 2006

supervisor, director, and the City Manager is required for such leave. In an effort to encourage self-

development, training, and education, the City offers a tuition reimbursement program as an additional

benefit for regular full-time employees. Information and application forms for tuition reimbursement are

available in the Personnel Department.

Section 9.8 Ernplovee Suugestions. Employees on the frontlines of City operations can detect

shortcomings and unforeseen problems when work theories and principles are put into practice. The City

encourages each employee to make suggestions which could improve any facet of municipal service or

working conditions.

Section 9.9 Telephone.

A. Telephone Technique. Employees are expected to use rules of everyday courtesy in using the

telephone. Employees should always identify themselves and their department. If the inquiry has

been misdirected, every reasonable effort should be made to direct the call to the proper person

and department.

B. Personal Calls. The City telephone is installed for business purposes, and personal calls

should be kept to an absolute minimum. Long distance calls and personal communications that

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