Opinion issued Ju ne 23 , 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 15
- 00631
- CV

——————————— PETER J. PASKE, JR. , Appellant

V. JOEL FITZGERALD, IND IVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF C ITY OF MISSOURI CITY , AND

THE CITY OF MISSOURI CITY , TEXAS, Appellee s
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 12
- DCV
- 200899

O P I N I O N Appellant Peter J. Paske appeals from a summary judgment in favor of appellee s , the City of Missouri City and its former chief of police, Joel Fitzgerald

. Paske alleges that his rights under Texas Government Code sections 614.021

– . 0232

were violated when Chief Fitzgerald terminated him for insubordination without first presenting him with a signed complaint as a predicate to an interna l investigation of his misconduct

. Because there is no evidence of any “complaint” made against Paske th at would trigger th e application of Chapter 614 , w e affirm the judgment of the trial
court. Background Peter Paske had been a sergeant in the Missouri City police department for several years before Joel Fitz gerald was appointed to be the D epartment’s c hie f of
p olice. Chief Fitzgerald found Paske to have been insubordinate and disre s pectful on several occasions, particularly one incident whe n he made loud comments at a supervisor s’ meeting regarding the chief ’s suggestions for the command staff’s
uniform. After a finding that Paske had violated departmental policies and deserv ed discipline, Chief Fitzgerald demoted Paske. Chief Fitzgerald subsequently issued Paske a performance improvement plan (PIP) which required an independent evaluation through the ci ty’s employee assistance program (EAP). The PIP listed several conduct violations stemming from Paske’s behavior during the supervisors’ meeting, and it also noted that he had become very angry when he was demoted. The PIP required Paske to “follow all law ful orders,” to conduct himself “in a manner that does not impair the efficiency3

of the department or any employee , ” and admonished him not to “display pompous, argumentative, or disrespectful behavior to any citizen, fellow officer, or supervisor.”
After the initial EAP evaluations , the EAP therapist found several “ red flags ” for potential steroid use, including weight loss, anger control problems, and high blood pressure. The EAP therapist recommended that Paske take a drug test to check for the use of s teroids. The D epartment agreed to order Paske to undergo testing. On the day of one of Paske’s scheduled EAP appointments, hi s mother

- in

- law was supposed to provide care for his three children and three nieces and nephews , two of whom were infants, and al l of whom were under the age of 13. That morning, Paske’s mother

- in

- law was struck by a car, and she was taken to the hospital. Paske arranged for a neighbor to take care of the two infants while he attended the EAP appointment, but he and his wife were bo th uncertain about the neighbor’s ability to supervise them. The three remaining children were left by themselves at home. When Paske arrived for the counseling session, he was told that he needed to take a drug test that day. Paske claims he had no prior notice of the test. He initially agreed to take the test, but then learned that he could not take it at the EAP facilit y (located within Houston), but would need to go to the d epartment headquarters (in Missouri City)

.4

Paske cal led the assistant chief to explain that he had a family emergency because of the car accident. The assistant chief asked Paske if he was coming to the office, and when he said that he would not, the assistant chief said “Okay.” Chief Fitzgerald called Paske back and ordered him t o report to the department ’s headquarters within an hour. Paske said that he could not come in. Paske did not go
to headquarters that day, but he arran ged for a drug exam issued by an accredited third

- party

. This exam did not test for steroids, but Paske’s results were negative for other substances. Chief Fitzgerald terminated Paske by a letter that li sted several violations of the D epartment’s code of conduct stemming from his failure to report for the drug
test. The letter stated that Paske’s employment would end “effective on the date of this letter.” It did not provide factual background on the specific events that led to his termination. Chief Fitzgerald did not conduct or request an internal affairs investigation before firing Paske. In both his test imony and an email to other members of the D epartment , Chief Fitzgerald acknowledged that Paske’ s failure to report to headquarters within the hour for the required drug test was the reason for his termination. Paske hired counsel who requested an indepen dent review of Chief Fitzgerald’s decision by the city manager’s office. After this request, the City provided Paske with 671 pages of documents relating to the termination, including5

the related sections of the Department’s policy manual , memoranda regard ing the termination decision , and the contents of his personnel file. After reviewing several documents from both parties, t he city manager’s office concluded that Paske’s behavior violated the PIP and EAP requirements , and it upheld Chief Fitzgerald’s
dec ision. The State filed a mandatory report with the Texas Commission on Law Enforcement Officer Standards and Education in w hich it classified Paske’s
termination as a “ dishonorable discharge. ” Paske filed suit in the State Office of Administrative Hearings to dispute the dishonorable discharge classification

. After a bench tria l, the administrative law judge found that Paske disobeyed a lawful direct order, which constituted insubordination unde r the Missouri City Police Department’s rules and policies. The administrative law judge concluded that the Department was not required to amend the dishonorable discharge designation. Paske then filed claims against both Chief Fitzgerald and the City for race discrimination, retaliation, and violations of the First Amendment in the district court of Fort Bend C ounty. The defendants removed the case to federal court , where Paske amended his claim s to a llege a violation of state law under Texas Government
C ode sections 614.021

– .023 , specifically that Chief Fitzgerald failed to provide him with a signed complaint detailing the factual circumstances leading to his discipline

. Paske sought a declaratory judgment that his rights under these statutes had been6

violated , along with an injunction against future violation s , all economic and compensatory damages suffered both past and future with appropriate prejudgment and post

- judgment interest , and attorney’s fees

. The federal court granted summary judgment for the defendants on Paske’s race discrimination and First Amendment claims, but it severed and remanded the claims under the Government Code. Paske does not appear to have filed an amended version of his live pleadings in the state district court after reman d. Paske’s amended
claims alleging viola tion of the Government Code therefore are not present in the record before this court, but they are mentioned in the federal district court’s summary judgment and remand orders

. Upon return to the Fort Bend County district court, t he City and Chief Fitzgerald filed a plea to the jurisdiction and moved for summary judgment with respect to the Chapter 614 claims

. The plea to the jurisdiction argued that the city

en joyed governmental immun ity from retrospective relief , and that this deprived the trial court of subject

- matter jurisdiction

. This jurisdictional plea did not address Paske’s claims against Chief Fitzgerald in his individual or official capacity. The moti on for summary judgment argued that Chapter 614 does not apply when the chief of an agency discharges a subordinate based on failure to follow a lawful direct order, and that in the alternative, the materials given to Paske satisfied the statute’s requirements.7

Paske file d a response and a competing motion for summary judgment

. His

m otion sought a declaration that both the City and Chief Fitzgerald in his official capacity failed to perform actions r equired as procedural safeguards under Chapter 614. Paske also sought reinstatement, costs, and attorney ’s fees from the C ity, and reinstatement and back pay from Chief Fitzgerald. The trial court granted the appellees’ motion and plea to the jurisdiction , denied Paske’s competing motion, and rendered a final judgment dismiss ing all claims with prejudice. Paske appealed. Analysis At the outset, appellees contend that we should deny Paske’s appeal and affirm the trial court for two procedural and jurisdict ional reasons . First, they contend that Paske did not present a record of a petition that asserts a valid claim for declaratory judgment and that this deprives this court of the ability to reverse the lower court’ s decision because it cannot find error

. Second, they argue that governmental immunity deprived both the trial court and this court of subject

- matter jurisdiction.
I. Adequacy of appellate record It is an appellant’s responsibility to bring a complete record before the court that shows he is en titled to relief. See Enter. Leasing Co. of Houston v. Barrios , 156 S.W.3d 547, 549 (Tex. 2004); DeSantis v. Wackenhut Corp. , 793 S.W.2d 670, 6898

(Tex. 1990). The Texas R ules of Appellate Procedure require that unless the parties designate the filings in t he record by agreement, the record must include all pleadings on which the trial was held. T EX
. R. A PP
. P. 34.5(a)(1). However, “if a relevant item has been omitted from the clerk’s record” the appellate court may direct the trial court clerk to supplement the record to contain the omitted item. T EX
. R. A PP
. P. 34.5(c). This court may also take judicial notice of a relevant fact that is “either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready de termination by resort to sources whose accuracy cannot be reasonably questioned.” T EX
. R. E VID
. 201(b); Freedom Commc’ns, Inc. v. Coronado , 372 S.W.3d 621, 623 (Tex. 2012). Federal law provides that when a district court lacks subject matter jurisdiction, a “certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.” 28 U.S.C. § 144 7(c). A remand thus transfers subject

- matter jurisdiction back to the
state court on the claims that have been remanded. See Gonzale z v. Guilbot , 315 S.W.3d 533, 537

– 38 (Tex. 2010). The City and Chief Fitzgerald did not object to the trial court addressing the remanded declaratory

-

judgment claim ; indeed, they asked the trial court to grant summary judgment dismissing that claim

. Even if u npleaded , a claim or defense that is tried by express or implied consent of the parties is treated as if it had been rais ed9

by the pleadings. Roark v. Stallworth Oil & Gas, Inc. , 813 S.W.2d 492, 495 (Tex. 1991 ) ; Bednarz v. State , 142 Tex. 138, 139, 176 S.W.2d 562, 563 (1943 ). The rules for trial by express or implied consent apply to issues raised in a motion for summary judgment because “it would advance no compelling interest of the parties or of our legal system to reverse a summary judgment simply because of a pleading def ect.” Roark , 813 S.W.2d at 495. Paske’ s failure to include the amended petition in the clerk’s record is not a procedural defect that precludes us from reviewing the trial court’s judgment. T he Rules of Appellate Procedure and the Rules of Evidence enable us to supplement the record and take judicial notice of a fact that is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” T EX
. R. E VID
. 201(b); T EX
. R. A PP
. P. 34.5(c) ; Coronado , 372 S.W.3d
at 623

. Paske’s amended complaint is part of the federal district court records , which is an appropriate source for judicial notice. T EX
. R. E VID
. 201(b) ; see Coronado , 372 S.W.3d at 623

. It is also apparent from the remand order and the district court’s summary judgment that these claims were properly before the federal district court before remand to the state trial court , and that the remand returned jurisdiction to the trial court

. The City and Chief Fitzgerald failed to object to a variance from Paske’s pleadings in their motion for summary judgment. Instead, they directly disputed10

Paske’s interpretation of Chapter 614 , affirmatively seeking a summary judgment on the merits of the decl aratory

- judgment claim

. Paske’s requested relief and his grounds for seeking that relief also were repeated in his competing motion for summary judgment

. While th e timeliness of Paske’s summary

- judgment response and evidence was challenged in the low er court, th ose objections were overruled, and they have not been renew ed on appeal. It is apparent from the record that these issues were expressly presented to the trial court. See T EX
. R. C IV
. P. 166a(c). Therefore, we conclude that this issue was tried by consent in the state trial court, and we have a sufficient record to perform our appellate review. See T EX
. R. E VID
. 201 (b) ; T EX
. R. C IV
. P. 166a; Roark , 813 S.W.2d at 495.
II. Governmental immunity
T he City claims it was immune from suit due to governmental immunity and that its plea to the jurisdiction preclude s this appeal. Chief Fitzgerald does not claim
to share this imm

unity. Paske argues that because his suit is for a declaratory judgment construing the statute , he could join the Ci ty in his acti on against Chief Fitzgerald. He also asserts that there is no governmental immunity for an ultra vires suit against Chief Fitzgerald in his official capacity. We review a trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226

– 27 (Tex. 2004). When a fact question is presented by the evidence regarding a jurisdictional issue, the trial11

court is precluded from granting summary judgment on a jurisdictional challenge, and fact issu es will be resolved by the fact

- finder. See id. at 227

– 28. However, if the relevant evidence is undisputed or fails to raise a genuine fact issue regarding the jurisdictional challenge, the trial court should grant summary judgment as a matter of law. Id. at 228. When performing governmental functions, political subdivisions derive governmental immunity from the state’s sovereign immunity. City of Houston v. Williams , 353 S.W.3d 128, 134 (Tex. 2011). Sovereign immunity prevents the state from being sued wi thout its consent. See id. This immunity has two components: immunity from suit, and immunity from liability. Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006); Gen. Servs. Comm’n v. Little

– Tex Insulation Co. , 39 S.W.3d 591, 594 (Tex. 2001). Immunity from suit defeats a trial court’s subject matter jurisdiction, but immunity from liability does not affect a court’s jurisdiction
to hear a case. See Texas Dept. of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999).
A suit for declaratory or injunct ive relief against a state official to compel compliance with a statutory provision is not a suit against the State and is not barred by governmental immunity. See City of El Paso v. Heinrich , 284 S.W.3d 366, 370 (Tex. 2009). Such a suit prevents an office r from acting ultra vires, and does “not seek to alter government policy but rather to enforce existing policy.” Id. at 372. An ultra vires suit must allege and prove that an officer acted without legal authority or12

failed to perform a purely ministerial, non - discretionary act. Id. at 372. The proper party for an ultra vires suit is the state actor in his official capacity, as the State retains immunity from suit , even if a judgment against the servant in his official capacity will impose liability on the S tate as a whole. See id. at 373. The Texas Declaratory Judgments Act contains a waiver of immunity from suit. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 37.006(b) ; Montrose Mgmt. Dist. v. 1620 Hawthorne, Ltd. , 435 S.W.3d 393, 403 (Tex. App.

— Houston [14th Dist.] 2014, pet. denied). I f a party joins a governmental entity and seeks a declaration construing a particular ordinance or statute, immunity from suit is waived. See Tex. Lottery Comm’n v. First State Bank of DeQueen , 325 S.W.3d 628, 633

– 35 (Tex. 2010).
Howev er, governmental immunity will bar an otherwise proper declaratory

judgment claim that will have the ultimate effect of establishing a right to relief against a gov ernmental entity for which the L egislature has not waived immunity. See Tex. Parks & Wildlif

e Dep’t v. Sawyer Trust , 354 S.W.3d 384, 388 (Tex. 2011). Paske has alleged that Chief Fitzgerald failed to perform a necessary ministerial act by failing to provide him with a signed complaint pursuant to the
G overnment C ode. Paske is therefore seeking a declaratory judgment relating to an ultra vires act. See Heinrich , 284 S.W.3d at 372. Because an ultra vires suit is proper against a public servant in his official capacity, the trial court had jurisdiction over Paske’s claims against Chief Fitzgerald. S ee id. at 373.13

However, Paske’s claims against Missouri City are barred by governmental immunity from suit. See id. at 373; First State Bank of DeQueen , 325 S.W.3d at 633 (suit seeking more than construction of statute still barred by immunity)

. Rather than merely seeking a declaration to construe the meaning of the statute, Paske is seeking to establish his right to relief against the City for Chief Fitzgerald’s ultra vires acts. See Montrose Mgmt. Dist. , 435 S.W.3d at 404. Because the City has n ot waived its governmental immunity from suit, the trial court did not have jurisdiction o ver Paske’s claims against the C ity. See Heinrich , 384 S.W.3d at 373. We conclude that the City has governmental immunity from suit against Paske’s claims

. See Jones , 8 S.W.3d at 638. We affirm the trial court’s dismiss al of Paske’s claims against the City of Missouri City accordingly. However, the trial court had subject

- matter jurisdiction over the declaratory

- judgment claims against Chief Fitzgerald in his official capacity for his alleged ultra vires acts. See Heinrich , 284 S.W.3d at 372.
I II. Government Code Chapter 614 Finally , we address Government Code sections 614.021

– . 023 and the trial court’s grant of summary judgment in Chief Fitzgerald’s favor

. When both parties move for summary judgment and the trial court grants one motion and denies the other, we review both parties’ summary

- judgment evidence and determine all questions presented. Valence Operating Co. v. Dorsett , 16414

S.W.3d 656, 661 (Tex. 200 5); FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex. 2000). When the trial court’s order does not spec ify the grounds for its summary

-

judgment ruling, we affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003). When construing a statute, we ascertain and give effect to the Legislature’s intent as expressed by the language of the statute

. City of Rockwall v. Hughes , 246 S.W.3d 621, 625 (Tex. 2008). We use definitions prescribed by the Legislature and give words any technical or particular meaning they have acquired. Id. Otherwise, we construe the statute’s words according to their plain and common meaning, unless a contrary intention is apparent from the context or such a construction leads to absurd results. I

d. at 625

– 26. Government Code Chapter 614, Subchapter B addr esses a category of circumstances in which a “ complaint ” is made against a peace officer, and it requires a specified procedure to be followed before the head of a local law enforcement
agency may “ consider ” the complaint or take “disciplinary action” on i t, including suspension or termination from employment

. See T EX
. G OV ’ T C ODE §§ 614.021

–

. 023. Subchapter B provides as follows: § 614.021. Applicability of Subchapter (a) Except as provided by Subsection (b), this subchapter applies only to a complaint against:15 (1) a law enforcement officer of the State of Texas . . . (b) This subchapter does not apply to a peace officer or fire fighter appointed or employed by a polit ical 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 comp laint against a peace officer or fire fighter, as applicable. § 614.022 Complaint to Be in Writing and Signed by Complainant 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. § 614.023 Copy of Complaint to Be Given to Officer or Employee (a) A copy of a signed complaint against a law enforcement officer . . . shall be given to the officer or employee w ithin 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.16

Opinions apply ing this statute have observed that it provides a measure of procedural protection for law enforcement officers, protecting them from adverse employment action bas ed on unsubstantiated accusations

. See, e.g. , Turner v. Perry , 278 S.W.3d 806, 823 (Tex. App.

— Houston [14th Dist.] 2009, pet. denied)

. Chief Fitzgerald argues that the trial court properly granted him summary judgment because there was no “complaint” in this case, and instead he acted upon employee misconduct that he personally witnessed in his o fficial role as chief. He contends that the requirements of Subchapter B would be superfluous when he is acting based upon his personal observations

. Subchapter B requires a “ complaint ” against a law enforcement officer to be made in writing and signed by the complainant before it can be considered as a basis for disciplinary action , but it does not define what constitutes a “complaint.” See
T EX
. G OV ’ T C ODE § 614.021

– .023. A “complaint” is commonly defined as an

“ expression of grievance or injustice suffer ed ” or “a formal allegation against a party.” E.g. , Complaint , M ERRIAM W EBSTER ’ S C OLLEGIATE D ICTIONARY (10th ed., 1993) ; Complaint , T HE N EW S HORTER O XFORD E NGLISH D ICTIONARY ( 1993)

. These definitions both require some form of communication

— one party expres sing dissatisfaction or making the allegation against the other. A divided panel of the Third Court of Appeals in Treadway v. Holder , 309 S.W.3d 780 (Tex. App.

— Austin 2010, pet. denied), considered this language when17

determining whether the term “complaint” in section 614.023 includes internal complaints by other officers. See id. at 783

– 84. The appellant in Treadway was terminated after a lieutenant received a complaint from a shift sergeant stating that the appellant had failed to comply with a requirement that she meet weekly with a trainee. Id. at 781. The court reasoned that although the allegations of misconduct in that case were made by Treadway’s supervisors, those allegations were still a “complaint” for the purposes of the statute

. See id

. at 784

– 85

. The court specifically determined that “the legislature did not intend the term ‘complaint’ to be limited to external citizen complaints ” and stated that the “fact that these allegations were made by Treadway’s supervisors [was] immaterial.” I d. at 784. The court concluded that Treadway’s “ ability to investigate or defend against ” the complaint was harmed by the failure to comply with Chapter 614 , and it reversed the summary judgment that had been granted in favor of the county. I d. at 785

– 86. More recently t his court, in Staff v. Wied , 470 S.W.3d 251 (Tex. App.

— Hous ton [1st Dist.] 2015), pet. granted , No. 15

- 0912 (Tex. June 17, 2016) , referenced the Treadway majority’s reasoning and quoted its analysis with approval

. See id. at 260. Staff conc erned a complaint about a deputy sheriff that was brought by a county attorney’s office before being investigated by the Sher iff’s Department

. Id. at 254. The Sheriff’s Department gave the deputy a “Performance Deficiency Notice” that stated that his termination was “effective immediately.” Id. A panel of18

t his court concluded that a letter from the county attorney raising concerns about the deputy’s job performance qualified as a “complaint” for purposes of Chapter 614,
and the “Perform ance Deficiency Notice” given to the deputy did not satisfy Chapter 614’s requirement that he be provided a signed written copy of the complaint, since it came from the Sheriff’s Department rather than the county attorney’s office, which
the Staff opinion characterized as the “victim” of the deputy’s misconduct

. Id. at 260

- 6 1

. Paske relies on both Treadway and Staff to support his claim, but they are factually distinguishable . In both of those cases, there was some form of initiating allegation , characterized in both cases as a “complaint,” received before the supervisor made a final decision to terminate the employee. See Staff , 4 70 S.W.3d at 253; Treadway , 309 S .W.3d at 781. I n contrast, the supervisor in this case himself observed the miscond uct and made the decision to terminate Paske

. Unlike the circumstances in Staff

, t he letter sent to Paske was a disciplinary action, rather than a “formal allegation of misconduct.” See Staff , 4 70 S.W.3d at 261. Section 614.022 specifies a procedure for the consideration of a “ complaint ,” but that procedure is not imposed as a precondition to every adverse employment action that may be taken against a law enforcement officer. T EX
. G OV ’ T C ODE § 614.022. To conclude otherwise would require a department chief to write , sign , and deliver to an employee an account of his personal observations of19

misconduct before even considering any form of disciplinary action , a rule that is not compelled by a natural reading of the statute

. See i d. Subchapter B addresses procedures applicable to a “complaint.” See id. As cases applying this statute have demonstrated, a “complaint” may originate from either outside a law enforcement agency or from within it

. See Staff , 4 70 S.W.3d at
261 ; Treadway , 309 S.W.3d at 78 4

. But every termination of a law enforcement officer does not necessar il y have has its genesis in a “ complaint. ” If Subchapter B

w ere meant to apply to every termination of a law enforcement officer , the Legislature presumably would h ave said so directly

. We conclude , based on the facts of this case, that there was no “complaint” leading to Paske’s termination , and Subchapter B is therefore inapplicable. See T EX
. G OV ’ T C ODE § 614.021

– 023. Because there was no statutory violation, we overrule Paske’s sole issue and affirm the trial court’s grant of summary judgment in favor of Chief Fitzgerald. See Knott , 128 S.W.3d at 216. Conclusion We affirm the trial court’s judgment.

Michael Massengale Justice Panel consists of J ustices Higley, Bland, and Massengale.