# 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 of Criminal Appeals of Texas · February 18, 2015 URL: https://www.frixlaw.com/law-library/cases/4041501 ## Case - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 18, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4041501 ## How later opinions describe it (automated extraction) - describing the de novo standard of review - describing the appellate court’s role in a de novo review for a pure question of law - holding that efforts to pressure deaf-mute consumer to buy car were legally sufficient evidence of intentional infliction ## Opinion text 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, v. KOREY FERGUSON Appellee. Appeal From No. A38274-1112 th 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 ii 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, v. 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. iv 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 v 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 vi 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 ix 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. 11 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. 12 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. 13 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 1 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. 14 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 15 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” 2 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. 3 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. 16 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 4 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. 17 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 5 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 18 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). 19 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. 20 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. 21 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 22 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. 23 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 24 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 25 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- 26 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 6 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). 27 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, 28 .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 29 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 30 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– 31 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 32 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 33 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. 34 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. 35 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: 36 “(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 37 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 38 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 39 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 40 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– 41 397 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 42 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 43 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. 7 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. 44 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 45 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 46 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 47 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 48 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 49 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 1 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. (c) Election and Terms of Councilmembers. The regular election of 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. 2 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. (c) Interference with Administration. Except for the purpose of inquiries and 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. 3 CITYIFPU/JmEWCIIAIITBI The above list is not to be construed as being all-inclusive. (c) Filling Vacancies. A vacancy in the City Council, including the Mayor, 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 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. 4 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. (c) Voting. Voting, except on procedural motions, shall be by roll call and the 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. 5 (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. (c) Effective Date. Except as otherwise provided in the ordinance, state law or 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 6 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. (c) Printing of Ordinances and Resolutions. The city council shall cause each 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 7 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. 8 CITTIIPU/RIEIICHA6TEI/ 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 9 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 10 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. (c) Adoption. The city council shall adopt the budget on or before the last day of 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. 11 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 (c) any other ordinances required to authorize new revenues or to amend the 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. (c) Reduction of Appropriations. If at any time during the fiscal year it appears 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 12 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: 13 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 14 Cmiii'UIIWIIWCIIA8Tlll 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. (c) Conduct of Elections. The provision of the general election laws of the 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. (c) Powers and Duties of the Commission; Hearing, Submissions and 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 15 /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. 16 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 17 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4041501. Public record. Not legal advice.