please the court the district court's determination that officer stim did not have a constitutionally protected property interest in his employment with the city of one police department is the hub of the district court's dismissal of stan's complaint all the other matters discussed in the order of dismissal are really just spokes emanating from that hub if you take out that hub once it fails the spokes in the medical metaphorical sleep protected property interest when it's said that before he can be terminated the complaint must be investigated and there must be evidence to prove the allegation of misconduct that is constitutional right of no complaints been to file against him under that circumstance yes he does have a complaint because the complaint can be internal it doesn't have to be extra the texas state law says internal external anything that may lead pills in austin which says specifically that the in the complaint and that's the i'm with the deputy i think it's not civil service of williamson county and that deputy they said whether they have a protect property interest or not we don't get to in this case because it's clear that there was a complaint but the definition of complaint was that it's anything that may lead to disciplinary action and that's been followed in the supreme court has denied the petitions on the of those cases trying to challenge them so under any circumstances when a policeman in the state of texas loses his job he has a right under this statute no sir if there is a reduction in force if for budgetary reasons the government entity says you know back when the all the room was going in south texas we needed fifteen police officers now the economics of the situation are such with the play going it's ok so if we're going from fifteen to ten and we stay at ten there would be no protect the property interest because they've done away with the position that if there are eleven officers of thought about this a lot you don't i think this is an excellent point that if you're worried about we just want to get rid of well there must be a reason why it has to be because of lack of performance let there be a complaint let him go through the i guess i'm trying to understand when this due process right arrives in this context because generally all employees are going to be at will employees in texas right unless unless what's going on less in this case is  because of a state statute only the because the city of her adopted the statute essentially as part of its internal policy which which one is it or is it or isn't it one that i think is because of the state looking at the statute before six fourteen and so part which does not have any of the language in it that most helpful to you treadway got that from the civil service act as part of the government code and so we would have to adopt that same approach cannot act unless the complaint is in writing and then the other provisions follow it seems to me what we're dealing with here is not a written complaint i mean and we need to leave that treadway did when he stared we're dealing of of complaint has been no discovery in this case i suppose and it was handled in a motion to dismiss so just taking you pleadings is no written complaint and looking at just pure language of six fourteen zero twenty two twenty three i don't see that they have acted on something that has been covered by and you have it down would you not acknowledge it we are only looking at the language of six fourteen and it's so p without any definitions of what a complaint is that looking without your treadway case of some of these other cases this is not much of a case for you judge in treadway what they were doing with  civil service act was trying to decide what is a complaint right and they were looking at what is a complaint but when most of the civil service act on the side it ought to be imported into this other act as a as a rule as a proper understanding of what the legislature meant when it was as a way to interpret this particular stun way to do it nothing way any non controlling opinion did it it's not sprinklered of texas who are not bound by we need to make our own best understanding of what this is you know we're not arguing the failure to comply with the statute up through the investigation in the evidence my client the constitutional protect the property interests it was only when they went in there without proof of misconduct the mayor says i'm a wreck in term of the nation the only investigation of my client occurred by the grand jury and he was not billed so with regard to the statute we are focused exclusively on subchapter c of six fourteen point zero two three where it says the complaint must be investigated and there is evidence to prove the allegation misconduct that is cause that means there must be a reason a fear reason if  is a complaint and what you are doing is an employment at will does not apply and your answers his previous question really makes it seems like it will almost never apply to this missive a police officer looking at it from the other viewpoint unless six fourteen or twenty two definition complaint exists in this case the police department have the right to dismiss someone who because of population reasons or otherwise has given a bad publicity to the police department may be undeserved i've no idea what the actual facts of what happened were but that's what employment it will allow allows no matter how unfair it may be and so any statutory exception to employment will in texas seems to meet needs to be fairly clear and you need a whole lot more it seems to me than the plain language of six fourteen to get you there i'm not saying you can't get there some intermediate parent courts of have done the work for you ahead of you but we need to decide whether that's a legitimate interpretation of the statute in terms of versus prairie justice guzman said that the legislature had made that determination that the costs of going through with this procedure outweigh the burden that may be imposed and if it and if the issue is you close some bad publicity for us because even gauged in force that may be improper or may not be improper to give the complaint that says that you've given the undue influence then the publicity we can then go through if there's evidence to prove that that may be sufficient we're not entitle to result  has these process even if the decision is against him and it seems like it's the unfair decision he has to accept the decision whatever it is he got his process under the state statute and if it goes against them and they have a bad reason for terminating him so be it he got his process unless we could prove that they were biased that it was not an impartial tribunal unless we could prove that somewhere his due process r process but not with it not with the result you said it's due process rights now there's a difference between the procedure under the steak statute and due process rights under the constitution absolutely and that's our argument that the state statute is what gave him the l paragraph see the six fourteen point zero two three is what gave him the constitutionally protected property interest the fact that he didn't get a written complaint before is not necessarily part of the issue with regard to the constitution protect the property interest in the due process he was entitled to there if you don't see a difference between being entitle to a certain procedure and being entitled to your job and having a good read reason to be terminated so that they do have to prove that there is reason that there is cause they would have to prove the cause but if the tribunal hears it and has a disagreement with me about what is cause and less i can show that the tri was tainted that they'd expressed bias previously then you know what i think that i'll be entitle to be the process and the result now is it's a situation where the chief of police is sitting there he's got a police officer out here the police officer  has been trained by the taxpayer has been invested in by the taxpayer that i think put the legislature said in six fourteen point zero two three says if you're going to get rid of that for some reason there has to be evidence of misconduct unless it's going to be for going into these budgetary reasons and so that's that's basically where we are and if and if the city had had any reason to attack or to terminate officer it wasn't on the basis of a complaint they could've attacked us with the twelve b one factual attack to say here's the affidavit that shows this was for budgetary reasons it had nothing to do with the shooting in this field it had nothing to do with misconduct they did not do that and so all we've got is the that would be a factual attack the facial attack is what we have here that's all we've got and so that's what we dressed this way and so we believe that without question this statute provides that there must be cause when it says there must be evidence to prove the allegation of misconduct that's ineffective and not specific enough to provide any relief turning to the claim under forty two u s c section nine hundred eighty three the only grounds for federal jurisdiction and the district court is the constitutional claim still klein's by virtue of a state statute that he had a property interest in his right of continued employment with the city of perm chapter s fourteen neither before or after the two thousand and five amendment provides an expectation of continued employment and to answer the question judge prado about what six fourteen actually provide if on august the thirtieth two thousand and fourteen one week before officer salem shot partly gold the police chief came in and said you know officer still i don't think i want you working here anymore there is nothing about six fourteen that provides him any protections or mr koehler has erred is in the same mean that someone has to have a reason for terminating an employee and texas as judge grace pointed out employment is presumed at will even for government employees unless the civil service statute applies there is a civil service statute under chapter one forty three of the texas local government code and then there's a separate collective bargaining agreement statute under one seventy four of the local government code and significantly this is important to the city of hern as well as to all municipalities throughout the state of texas for either one of those chapters to apply the voters most of prove the adoption of that chapter by a majority vote of the citizens of that community chapter six fourteen applies to all other municipalities who have not adopted the civil service statute and entered into a collective bargaining agreement that addresses this investigation of complaints of misconduct but it doesn't need to be adopted by the city it applies but it does not create a property interest but does that create a procedural process that he's guaranteed if there is a complaint against him or her it does create and this is before the two thousand and five minute and after procedural requirements and what it doesn't do in the texas intermediate courts have struggled with it as it doesn't give a remedy for failure to comply with those procedural requirements it's essentially gives rise to a grievance the officer may have a grievance or some right to complain internally if a such a procedure has been established but as that the courts have always helped the siege will remedy is or not property interest before we get to a procedural right under federal due process law there has to be a state created property interest in mind that it's goes beyond procedures really the last phrase of c v to over twenty three cities to which is it must be evidence to prove the allegation of misconduct sees me then the police chief the head of the department is justified it and moving forward but let me point out that the rest of the language why this is not a property interest the northern district texas in the past case held that prior to the amendment they the first part of subsection big display action may not be taken against the officer or employee unless a copy of the signed complaint is given to the officer employee is simply faith the how to terminate it does not establish the watch and when two thousand and five and then it came around not in response to the case it was already in the works in the legislature in fact legislative history that my friend only opposing side has provided to the court  points out that they are simply adding additional protections they actually took substantial evidence out of the original language and just made it evidence leaving it to the court to figure out what that means but it's the same language just like display or action may not be taken unless a copy of the complaint is given the requirements in addition to those requirements the officer employee may not be indefinitely suspended or terminated unless two additional procedural safeguards are met one there has to be an investigation and two there has to be evidence not proof that's right take issue with the appellate argument that they had to prove cause just evidence and here's the other part that's important of misconduct upon which the  decision is based there is no pleading in this case no evidence in the record the officer still misfired for misconduct when you look at the record there is a complaint that there were protests by citizens and by people from outside the city of protesting the death of a ninety three year old woman there's nothing in the record that says officer was fired for misconduct had the city council directed the police chief to fire officer stone for misconduct that would have given rise to the statutory state law claim that these procedural protections had not been provided still not a property interest we have a situation here where maybe members of the public complain about him to the mayor so you have a of a complaint it might be oral then simply the city decides not to put it down on paper the person didn't write it down so we don't have to follow this process because we don't have a written complaint but we do have an oral complaint is there some obligation to convert that oral law oral complaint which is the basis for terminations into a written signed complaint in accordance with the statute says by the procedural requirements of the statute if the reason for termination is that complaint then it does need to be reduced to writing signed investigated and there has to be some evidence to support it but the notice of terminations there and the city hide behind a fact that the person that complained about them didn't give us a written complaint and we're going to terminate them because of that oral complaint not here's the distinction the city council just as it would had owned up to all they put the thirtieth the week before really gotten died still had the ability in an at will state to terminate still not for a good reason for a bad reason or no reason at all and significant it didn't give a reason if they had instructed still you're fired for misconduct that would have been on his record when he applied to the next long course and they did say he would have had the terminations for misconduct record there's nothing in this record or  fleeting significantly that says he was fired for misconduct the city still had the right to fire him for a good reason a bad reason or no reason at all and when you're reading the pleadings based upon judicial experience and common sense as this court has already acknowledged in questioning of mr hall or that the city may have been concerned about expanding political capital or a incurring bad poll published today and simply made the decision it's not worth it to us to defend this officer and we have the ability as an at will employer to terminate his employment so we're not going to go through talk about the record seven times this was a tro be one to abuse six dismissal there is no  developed record in this case there is the allegation that he was far without a written complaint being filed a stupid response from your friend a little while ago so it seems to me we are at least at the stage of the judge probably was talking about that there's an allegation here that he was in fact followed far and for his actions against ms goldman sort of hard to come to any other conclusion exactly  what the reason in the city council's mind was was just a more publicity or to think he actually had been engaged in misconduct is unknown and the store authority even to follow reason and belief allegation i would think in the complaint because there's nothing's been said publicly  discovery would have to run come so sees me with you're setting up for us and what you want us to affirm is that so long as the city council is silent about it even though six fourteen twenty two and twenty three would other that particular argument you were just making as to where that leaves us if if we get to an analysis of whether a state law right to procedural safeguards should have been provided then at the twenty one twe stage two things come into play one there simply isn't a pleading that he was fired for misconduct there is no orderly timing of the golden was shot there were protests in the street less than twenty four hours later the city council noticed the meeting and then he was terminated there is and the second calls the state law calls an allegation that he was terminated because of the complaint but again it's not a complaint of misconduct and i think what we end up with is a situation where the district court was justified in dismissing the state law claims what procedural rights should you have been afforded under state law which only provides for declaratory judgment  granted but if there is no property right there is no nine hundred eighty three cause of action and therefore no federal jurisdiction the district court was certainly justified did not abuse its discretion in dismissing the remainder of the case and if there's anything left to argu to resolve that distinction what was the real reason that often was it was fired that should be resolved in state court under a declared war judgment call would you agree that if you feel you could not be fired on than for cause and that's a property right if you cannot be fired other than for calls that creates a property right under this court's jurisdiction second up from that to say that there must be some evidence to support the misconduct allegation is at least creating the necessary for finding if not an actual finding of cause at least a finding of i'm a face he was a phrase you used before evidence of cause and cause to be the misconduct so there's least i mean it's i will acknowledge and that that to me is different than other cases but is at least far beyond that seems to me the usual employment at will situation with good reason bad reason no reason at all i don't apply here is not good bad no it's actually helps officer still because officer stillman didn't plead terminations for misconduct he didn't plead anything other than six fourteen gave him a property interest and it simply three procedural in compliance with procedural safeguards the ordinance does not endow the officer with a property interest i want to point out two specific cases one that was started by mr kohler turner versus perry stem acknowledges in his reply brief that that is the only texas case intermediate case that says subchapter be granted property interest but justice judge guzman in that case engages in absolutely no analysis or reasoning for why chapter six fourteen creates a property interest there's a lot of other issues in that case and just in passing says it creates a problem interest we don't think as the city of our own and other municipalities that's right with decided it hasn't been resolved by the argued the because deputy sheriffs are subject to a special statute deputy sheriff serve at the pleasure of the share that because that statute stablished the deputy sheriffs were at will employees the chapter six fourteen doesn't apply to the flipping the argument and the houston court of appeals the first district held that the procedural safeguards in chapter six fourteen did not alter the employment at will status in the holding that there actually apply and six fourteen and send it back to the trial court and said that the deputy sheriff had a declaratory judgment action to seek relief for failure to comply with these procedural states guards but they rejected the sheriff's argument that in some way it modified the at will statute and therefore came in conflict with another act of the legislature so we have a split in the intermediate courts of appeals in houston with the with regard to this issue  does it create a property interest or not if it doesn't change the at will statute it's not a property interest and the mere fact that the head of the department has to have some evidence if you will to support an allegation  misconduct doesn't change it from how you terminate to why you terminate because there are still other reasons why the officer could be terminated and as long as the city has those other options for termination for good reason a bad reason or no reason at all then it's not entitle the officer has no expectation of continued employment because they know they can be fired for any reason the issues about reduction of force is a red herring certainly courts have been loath to enter into an economic analysis about whether a city or county needs to cut a budget but that's not the play here and that's not the only situation where an officer can be terminated here he can been terminated for any reason and it's only when sure where we're headed bit of off the top of my mind if this court decides that there is not a constitutional right all that's left of the state claims and i think the district judge ruled that there was no complaint and dismissed just think claims if this court were to say well the issue upon that there is a complaint or not it is i know it's it's still an open question and so that was premature in dismissing the state cause of action do we send it back to the court to decide if it's going to keep it or dismiss it because it has supplemental jurisdiction or a procedure really how would we proceed if that were to end up being the case and i'm not saying that it is i'm just curious as you were arguing that came to mind and i start the judgment is not specific there is one sentence and and it still puts points out of the reply brief that addresses there was no complaint so six fourteen doesn't apply i suppose that probably was premature because the court in its memorandum of opinions as we're going to address the twelve the one issues first because if there's no jurisdiction then we don't need to deal with things on the caller thank you you're our judge if we think about for cause in the private sector where an employee has a contract that says you can only be terminated for clause that means there has to be some proof of misconduct that has been in them write it in the contract and without that it doesn't matter if the board of directors tells the president the council and i guess that's the point this is the contract that there is for cause or work or language to that effect yes or and you'll agree with me that the contrary ordinances there are stacked all over the country where the enacting body deliberately tension only and often explicitly fayad you know only terminate somebody for cause creating a property that this happens all over the country all the time but to accept your argument i have to believe that the texas legislature legislature i think kind of in not so explicitly or implicitly decided that they were going to create a property interest in a job for all of these categories of employees i mean that's what i have to believe because because you'll agree all it says is as well if you're to if there is a complaint then you have to investigate and there has to be evidence of misconduct and that's about what if it i can understand that hard we're told from the supreme means is there must be some proof of misconduct that there was something there in the legislature whether they used for cause or not they used the words that the five point four cause is and i don't think that either the supreme court of the united states this quarter any of the other circuits have said it must only be characterized and articulated as for cause there can be other ways to get this right that is important they suggest that there's no remedy under the state law prerequisites of the procedures for the state law claims and if casey has been terminated so is there a right to reinstatement yes we do believe that under both section the teen eighty three and under six fourteen of the government that he would be entitled to that river now whether he's entitled we think that under section one thousand nine hundred three he would certainly be entitled to back wages we don't have the issue here of legal damages there's a question and there's state law claim about whether he can get legal damages money from the date of term nation to reinstatement i think that is restoring the status quo ante but the texas supreme court disagrees with me but certainly would be entitle to prospect of relief to be reinstated as of the day the court orders the reinstatement of to suggest that there was no complaint is to ignore the pleading in the pleading rules that the united states supreme court says we must follow here to look at it and to interpret them liberally the district was to do that we clearly know or attempted to show maybe we're feeble and if we were we should've been given an opportunity to fix it but we tried to show and say that he was terminated the cause of the complaint about the use of force statute clearly and unequivocally says that there must be proof of an allegation misconduct that was an allegation in this conduct here my client was deprived of his property interest without due process