NO. 01-14-00323-CV

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

HOUSTON, TEXAS

_________________________________________________________________

 

MARC STAFF 

 Appellant,

v.

COLORADO COUNTY, TEXAS, SHERIFF R. H. “CURLY” WIED, 

in his official & individual capacity, 

 Appellee.

On appeal from Cause No. 23,211

2nd, 25th Judicial District Court, Colorado County, Texas

The Honorable William C. Kirkendall

APPELLEE’S MOTION FOR REHEARING AND 

EN BANC RECONSIDERATION 

J. Eric Magee

ALLISON, BASS & MAGEE, LLP

A.O. Watson House

402 West 12th Street

Austin, Texas 78701

(512) 482-0701 Phone

(512) 480-0902 Fax

ATTORNEYS FOR APPELLEE

ACCEPTED

01-14-00323-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/2/2015 4:16:11 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/2/2015 4:16:11 PM CHRISTOPHER A. PRINE Clerk
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TO THE HONORABLE FIRST COURT OF APPEALS:

Appellee Colorado County Sheriff R. H. “Curly” Wied (hereinafter “Sheriff 

Wied”), in his official capacity, files this Motion for Rehearing and En Banc 

Reconsideration pursuant to Texas Rules of Appellate Procedure 49. In support 

thereof, Appellants would show the court as follows:

INTRODUCTION

On August 18, 2015, a three-Justice panel of this Court consisting of the 

Honorable Justices Evelyn V. Keyes, Rebeca A. Huddle, and Russell Lloyd issued 

an Opinion reversing the judgment of the trial court and rendering judgment in 

favor of Staff declaring that Sheriff Wied violated Government Code sections 

614.022 and 614.023. Further, the panel remanded the case for the trial court to 

determine whether to award Appellant Marc Staff (hereinafter “Staff”) attorney’s 

fees.

The three-Justice panel erred in issuing this decision, in that sections 

614.022 and 614.023 of the Government Code were erroneously applied to Staff’s 

at-will employment and subsequent termination. Further, the three-Justice panel 

erred in issuing this Opinion that Sheriff Wied failed to comply with sections 

614.022 and 614.023 of the Government Code, if required. These errors should be 

set for rehearing by the three-Justice panel. Alternatively, Sheriff Wied requests 

that the errors be reviewed and reversed by the full Court of Appeals. Therefore, 
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Sheriff Wied timely files this motion for rehearing and en banc reconsideration; 

and further, respectfully requests that a majority of this Court en banc grant this 

motion for reconsideration and that the case be submitted to the Court for en banc

review and disposition.

ISSUES PRESENTED FOR REVIEW

Issue 1: The Court’s three-Justice panel erroneously interpreted and 

misapplied the facts and misconstrued the applicability of sections

614.022 and 614.023 of the Government Code to at-will employment 

in Texas.

Issue 2: The Court’s three-Justice panel erroneously held that Sheriff Wied 

failed to comply with sections 614.022 and 614.023 of the 

Government Code, if required. 

ARGUMENT AND AUTHORITIES1

1. The Court’s three-Justice panel erroneously interpreted and misapplied 

the facts and misconstrued the applicability of sections 614.022 and 

614.023 of the Government Code to at-will employment in Texas.

The three-Justice panel concluded that a county as “an at-will employer does 

not preclude application of sections 614.022 and 614.023 where a county employee 

has been terminated because a complaint has been made against him or following 

an investigation, as opposed to being terminated “at will” for no cause.” See

Opinion pg. 14. Specifically, the three-Justice panel, relying on Treadway v. 

Holder, states that in that case a similar argument was made that Chapter 614, 

 1 This Motion is supported by the record below which consists of the original Clerk’s Record, consisting of volumes 

one (1), reference to which is by “CR ___” and the original Reporter’s Record, consisting of volumes one (1) 

through three (3), reference to which is by “RR ___”.
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Subchapter B did not apply because Comal County is at-will employer and peace 

officers are at-will employees. 309 S.W.3d 780, 783 (Tex. App.—Austin 2010, pet. 

denied). The three-Justice panel notes that the holding provided that “[w]e need not 

address any effect Subchapter B might have on at-will employment because it is 

undisputed that Treadway was terminated for cause. The issue, then, is not whether 

she could have been terminated without cause, but whether the cause for which she 

was terminated—lying to a supervisor and falsifying training documents—resulted 

from a ‘complaint’ that triggers the requirements of Subchapter B.” See Opinion 

pg. 14.

This case is not similar to the facts in Treadway v. Holder, nor are the 

arguments similar concerning the applicability sections 614.022 and 614.023 of the 

Government Code to at-will employment in Texas. In Treadway, the Court 

determined that it was “undisputed that Treadway was terminated for cause.” 

Here, the Performance Deficiency Notice stated that Staff had previously signed an 

acknowledgement indicating that:

[you he] received a copy of the Colorado County Personnel Manual 

and [your his] understanding that it was [your his] responsibility to 

read the manual and abide by the provisions in said manual. As 

specified in the Colorado County Personnel Manual on page 4, 

Colorado County is an At-Will employer. The following specified 

grounds for termination are not inclusive since the Colorado County 

Sheriff’s Office maintains the right to terminate employment for 

any legal reason or no reason at all. The following is merely 

written documentation of recent deficiencies in your performance
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and is not a complete record, nor should it be considered an 

exhaustive list of the reasons for your termination.

(CR 84) (emphasis added). Lt. Neisner recommended that Staff be immediately 

terminated and notified Staff that if he wished to appeal the decision, he “must do 

so in writing within 30 days to the Sheriff. The Sheriff will make a decision on 

whether or not to uphold the above decision. The Sheriff’s decision will be final.” 

(CR86) (emphasis added).

As the three-Justice panel noted, Government Code sections 614.022 and 

614.023 apply “when a complaint of misconduct forms the basis of the decision to 

terminate employment.” See Opinion pg. 13. In this matter, there is no such 

complaint that forms the basis of the decision to terminate Staff; instead, several

examples of performance deficiencies were merely noted by Lt. Neisner. (CR 84–

86). Lt. Neisner clearly stated that such deficiencies were not the only reasons for 

Staff’s termination and that the County could terminate Staff’s employment at-will 

for no reason at all. Id. 

The three-Justice panel’s Opinion implies that a complaint existed against 

Staff and was the sole cause leading to his termination, similar to the facts in 

Treadway, where the employee was “terminated—lying to a supervisor and 

falsifying training documents—resulted from a ‘complaint’ that triggers the 

requirements” of sections 614.022 and 614.023. See Opinion pg. 14. This case is 

distinct and clearly different from the circumstances described in Treadway. In 
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part, the Performance Deficiency Notice demonstrates that the prosecutorial 

integrity of a criminal case referred to that prosecuting authority, Colorado County

Attorney Ken Starks, by Staff, on behalf of the Colorado County Sheriff Office, 

was reviewed and submitted back to Sheriff Wied. (CR84–85) Specifically, the 

criminal case referred for prosecution dealt with an arrest made by Staff. Id. The 

record on appeal clearly demonstrates that “on 4-26-2010, Sheriff Wied was 

contacted by the Colorado Attorney, Ken Sparks, who provided him with a DVD 

copy of an in car video from one of your [Staff’s criminal] cases (2010-0598), in 

which [you were Staff was] assisting Highway Patrol with a motor vehicle accident 

on IH-10. Mr. Sparks had a copy of the DVD because it had been forwarded 

to his office by [you Staff] to assist with Prosecution after filing charges on a 

suspect for Motor Vehicle Accident Interference w/ Public Duties, Assault –Public 

Servant, and Resisting Arrest. Sparks suggested that the Sheriff review the in car 

video to observe your (Sgt. Marc Staff’s) actions during the investigation, and 

believed your [Staff’s] behavior and/or conduct was inappropriate and needed to be 

addressed. Sparks also advised that his Assistant County Attorneys, who had also 

reviewed the car in the video, felt [your Staff’s] conduct and/or behavior was 

inappropriate and concerning enough to bring it to his attention.” Id.

This example, noted in the Performance Deficiency Notice, is clearly not a 

“complaint” by County Attorney Ken Sparks to Sheriff Wied concerning Staff. 
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Instead, this matter demonstrates the necessary and required coordination of the 

Texas judicial system between the prosecuting authority and the law enforcement 

agency to effectively prosecute criminal violations. It is essential that the prosecuting 

authority rely on the evidence and testimony of the law enforcement agency to 

accomplish the task of prosecuting these criminal violations. A Texas sheriff’s office 

is not only an integral part of this process but actively involved in prosecuting 

criminal matters to a conclusion. Colorado County Attorney Ken Sparks did not file 

a “complaint” against Staff nor is he considered a victim of any “complaint.” Mr. 

Sparks merely notified Sheriff Wied of evidentiary problems in the criminal matter 

submitted by Staff that affected the merits of that case and the integrity of the 

prosecution of the matter. Significantly, Sparks did not request any disciplinary 

action against Staff. He essentially notified the Sheriff that he would not be able to 

proceed with the prosecution of the criminal matter and returned the patrol video to 

the Sheriff’s Office. 

As articulated in the Performance Deficiency Notice, the Colorado County 

Sheriff’s Office was not terminating Staff due to any particular complaint and 

maintained its right to terminate his employment for any legal reason or no reason 

at all. As stated in Sheriff Wied’s Brief, a sheriff in Texas, like other elected 

county officials, “holds virtually absolute sway over the particular tasks or areas of 

responsibility entrusted to him by state statute and is accountable to no one other 
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than the voters for his conduct therein.” Irby v. Sullivan, 737 F.2d 1418, 1423 (5th 

Cir. 1984) (citing Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 

1980). Specifically, Texas Law provides “sheriffs, and other elected county 

officials virtually unbridled authority in hiring and firing their employees.” 

Greenway v. Roccaforte, No. 09-08-00529-CV, 2009 WL 340683, at *4 (Tex.

App.—Beaumont Oct. 29, 2009) (quoting Renken v. Harris Cnty., 808 S.W.2d 

222, 225 (Tex. App.—Houston [14th Dist.] 1991, no writ) and Irby, 737 F.2d at 

1421). “Deputy sheriffs have no legal entitlement to their jobs as public 

employees; the sheriff may fire them for many reasons or for no articulate reason 

at all.” Renken, 808 S.W.2d at 225 (quoting Barrett v. Thomas, 649 F.2d 1193, 

1199 (5th Cir. 1981), cert. denied 456 U.S. 925 (1982)).

Accordingly, it was error for the three-Justice panel of this Court to conclude 

that Government Code sections 614.022 and 614.023 applied to the termination of 

Staff as an “at-will” employee, that a complaint was the basis of Staff’s 

termination, and that Staff was terminated for cause. This error requires review 

and reversal by the full Court of Appeals. Therefore, Sheriff Wied respectfully 

requests rehearing and en banc consideration. 

2. The Court’s three-Justice panel erroneously held that Sheriff Wied

failed to comply with sections 614.022 and 614.023 of the Government 

Code, if required. 
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As discussed above, the Texas Legislature has not changed the State’s nor 

Colorado County’s general “at-will” employment rule by adopting sections 

614.022 and 614.023 of the Government Code. As demonstrated above, Sheriff 

Wied asserts that these provisions are not applicable to the termination of Staff; 

however, in the alternative, Sheriff Wied fully complied with these statutory 

provisions.

The three-Justice panel erroneously concluded that “under both Guthery and 

Treadway, the Performance Deficiency Notice Staff received did not constitute a 

‘complaint’ pursuant to section 614.022, that Sheriff Wied failed to provide notice 

of the written complaint signed by the victim of the alleged misconduct, and that 

the Performance Deficiency Notice by which Staff’s employment was terminated 

‘effective immediately’ was a disciplinary action taken without a copy of the 

signed complaint having been provided to Staff”; therefore, violating both sections

614.022 and 614.023. See Opinion pgs. 22-23. 

As shown above, the facts in the present matter are easily distinguishable 

from Treadway. In Guthery v. Taylor, the “Court interpreted the statute as 

requiring a written complaint from the person claiming to be a victim of 

misconduct by the police officer.” 112 S.W.3d 715, 723 (Tex. App.—Houston 

[14th Dist.] 2003)]. The three-Justice panel noted that the disciplinary action 

“provided to Guthery and signed by the chief of police after investigating a citizen 
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complaint against Guthery, therefore did not qualify as a ‘complaint’ under 

sections 614.022 and 614.023 because it was not signed by the victim of the 

alleged misconduct.” See Opinion pg. 17. However, Guthery is distinguishable 

from the present matter as it involved a complaint of misconduct by a private 

citizen against a police officer.

Here, the three-Justice panel erroneously determined that allegations of 

misconduct existed against Staff and that these allegations “originated from outside 

of the Colorado County Sheriff’s Department, specifically, with the Colorado 

County Attorney, the ‘victim’ of Staff’s misconduct.” See Opinion 21. Further, the 

three-Justice panel erroneously opined that Sparks made the allegation of 

misconduct, but Staff was never provided with a written copy of the allegations 

against him signed by Sparks. 

The record clearly demonstrates that Sparks is neither a complainant nor a 

victim of any alleged misconduct. (CR84–86) As stated above, this example of a 

performance deficiency by Staff (not the basis of Staff’s termination) involved 

Staff’s patrol video in a criminal case referred by him to the prosecuting authority 

of Colorado County. As part of the prosecutorial duties of the County Attorney and 

his staff, the criminal case was sent back to the originating agency for further 

review as part of that criminal prosecution concerning the evidence submitted by 

Staff, the patrol video. The three-Justice panel’s conclusion that Sparks is a victim of 
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misconduct and/or a complainant under these statutory provisions is inconsistent with 

the plain meaning of these statutes. Further, such a conclusion is contrary to the very 

nature of the judicial system and the relationship between the law enforcement 

agency referring criminal matters and the prosecuting authority. 

The only requirements found in these statutory provisions state that in order 

for a “complaint” to be considered by the head of a fire department or law 

enforcement agency, the complaint must be in writing and signed by the person 

making the complaint. Further, the Government Code states that a copy of the 

complaint shall be given to the employee “within a reasonable time.” Additionally, 

an employee may not be “indefinitely suspended or terminated from employment 

based on the subject matter of the complaint unless it is investigated and there is 

evidence to prove the allegation of misconduct.” TEX. GOV’T CODE ANN. § 

614.023. Specifically, Texas Government Code, section 614.022 provides that 

“[t]o 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.” TEX. GOV’T CODE ANN. § 

614.022. Further, Texas Government Code, section 614.023 provides the 

following:

(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 
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after the complaint is filed.

(b) Disciplinary action may not be taken against the officer or 

employee unless a copy of the signed complaint is given to the officer 

or employee.

(c) In addition to the requirement of Subsection (b), the officer or 

employee may not be indefinitely suspended or terminated from 

employment based on the subject matter of the complaint unless:

(1) the complaint is investigated; and

(2) there is evidence to prove the allegation of misconduct.

Id. § 614.023.

If any victim existed under this narrow example of a performance 

deficiency, the victim would clearly have been the Colorado County Sheriff’s 

Office. The Record on Appeal explicitly demonstrated that, unlike Treadway, the

Colorado County Sheriff’s Office’s Performance Deficiency Notice (the internal 

complaint against Staff for policy violations) was signed by Lt. Troy Neisner and 

provided to Staff on April 28, 2010. (CR 84–86). Staff also acknowledged receipt 

of the Performance Deficiency Notice. Id. Therefore, a written signed complaint 

was provided to Staff as required by Texas Government Code section 614.022. 

Further, the three-Justice panel erroneously states that the Performance 

Deficiency Notice “constitutes a disciplinary action that occurred before Staff 

received a signed, written complaint of the allegations against him.” Section 

614.023 does not include the word “before.” The plain language of the statutory 

provision states that “[d]isciplinary action may not be taken against the officer or 

employee unless a copy of the signed complaint is given to the officer or 
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employee.”

Here, Lt. Neisner provided Staff with a copy of the Performance Deficiency 

Notice, the signed complaint, and recommended that Staff be immediately 

terminated. (CR 84–86). Further, Lt. Neisner informed Staff that if he wished to 

appeal the decision, he “must do so in writing within 30 days to the Sheriff. The 

Sheriff will make a decision on whether or not to uphold the above decision. The 

Sheriff’s decision will be final.” Id. (emphasis added). Although termination was 

recommended by Lt. Neisner, Sheriff Wied made the final decision concerning 

Staff’s termination. Id. and CR 88.

As the Record on Appeal demonstrates, Sheriff Wied fully and completely 

complied with all statutory requirements, including Texas Government Code, 

sections 614.021 – 614.023 by: (1) obtaining a signed complaint, the Performance 

Deficiency Notice, signed by Lt. Neisner (CR 84–86); (2) providing a copy of the 

Performance Deficiency Notice to Staff on April 28, 2010, within a reasonable 

time following the April 26, 2010, internal discussion between the County 

Attorney and Sheriff (CR 84–86); (3) conducting an investigation and 

demonstrating evidence proving the alleged misconduct (i.e., in-car videos of 

Staff) (CR 84–86); (4) providing Staff the opportunity to address the allegations 

and recommended termination by Lt. Neisner (CR 88); and (5) the final 

disciplinary action taken by Sheriff Wied on June 3, 2010, following a copy of the 
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Performance Deficiency Notice being provided to Staff and recommendation by 

Lt. Neisner for termination. (CR 88) 

It is important to note that Subchapter B of the Texas Government Code 

does not define or elaborate on the nature of a “complaint”; what is meant by a 

“reasonable time”; what type of investigation must occur; nor what is meant by 

“evidence to prove the allegation of misconduct.” Giving these words and phrases 

their common meaning, the actions of Sheriff Wied met all of the statutory 

requirements.

 Accordingly, it was error for the three-Justice panel of this Court to 

conclude that Sheriff Wied failed to comply Government Code sections 614.022 

and 614.023. This error requires review and reversal by the full Court of Appeals. 

Therefore, Sheriff Wied respectfully requests rehearing and en banc consideration. 

PRAYER

For the reasons set forth above, Appellee Sheriff R. H. “Curly” Wied 

requests rehearing by the three-Justice panel. Specifically, Sheriff Wied requests 

that the three-Justice panel withdraw the Opinion and affirm the trial court’s order 

granting summary judgment in favor of him and affirm the trial court’s final

judgment including the award of reasonable and necessary attorneys’ fees to 

Sheriff Wied. Further, Sheriff Wied alternatively requests that a majority of this 
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court en banc grant this motion for reconsideration, and that the case be 

resubmitted to the court for en banc review and disposition.

Respectfully submitted,

/s/ J. Eric Magee

J. Eric Magee

SBN: 24007585

e.magee@allison-bass.com

ALLISON, BASS & MAGEE, L.L.P.

A.O. Watson House

402 W. 12th Street

Austin, Texas 78701

(512) 482-0701 telephone

(512) 480-0902 facsimile

Attorney for Appellee
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CERTIFICATE OF COMPLIANCE

I certify that this computer-generated Appellee’s Motion for Rehearing and 

En Banc Reconsideration contains 3,085 words and complies with TEX. R. APP. P.

9.4.

/s/ J. Eric Magee

J. Eric Magee

CERTIFICATE OF SERVICE

I certify that Appellee’s Motion for Rehearing and En Banc Reconsideration

was served via certified mail, return receipt requested, facsimile, and/or 

electronically on this the 2nd day of September, 2015:

Daniel A. Krieger

Cagle & McCumber

215 E. Galveston

League City, Texas 77573

Attorney for Plaintiff

/s/ J. Eric Magee

J. Eric Magee