In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00405-CV 

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, APPELLANTS 

 

V. 

 

KOREY FERGUSON, APPELLEE 

 

On Appeal from the 64th District Court 

Hale County, Texas 

Trial Court No. A38274-1112, Honorable Robert W. Kinkaid Jr., Presiding 

 

June 23, 2016 

 

MEMORANDUM OPINION 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

This is a police disciplinary case from which the appellants (collectively “the City”) 

challenge the trial court’s order directing that appellee, Korey Ferguson, be reinstated to 

his position as police officer.1 We will affirm the order of the trial court. 

 

1 Appellants are the City of Plainview, Texas, and individuals William Mull and 

Ken Coughlin. Mull was Plainview’s police chief at the time Ferguson’s employment 
2

Background

Ferguson was hired as a police officer by the Plainview Police Department in 

September 2009. He was terminated on March 9, 2011, based on an investigation 

stemming from a citizen’s complaint. On February 17, 2011, Ferguson, then on duty, 

was called to the police station lobby to visit with Amber Washington, who had come to 

the station to request assistance with a domestic matter. According to Ferguson’s 

report, Washington was angry, repeatedly cursed at him and was uncooperative. After 

Washington refused to comply with Ferguson’s repeated requests to leave the station, 

he arrested her for disorderly conduct. In making the arrest, Ferguson used “hand 

control” and “took her to the ground” because Washington refused to put her hands 

behind her back and pulled away. The confrontation was recorded on video. The next 

day, Washington made a verbal complaint to the police department concerning 

Ferguson’s treatment of her. Washington then made a written complaint.

Approximately a week after Ferguson arrested Washington, Lieutenant Dion 

Guerra asked Ferguson to provide a written memo about the arrest. Ferguson was not 

informed of or given a copy of Washington’s written complaint. After an investigation, 

the police department concluded sufficient evidence existed to support an allegation of 

misconduct by Ferguson. Ferguson later testified he was not made aware of the ongoing investigation.

_________________

was terminated. Coughlin became police chief on Mull’s retirement, and was added as a 

defendant shortly before trial.
3

Officers of the department met with Ferguson on March 3, March 9 and March 

11. The court heard testimony that Ferguson was permitted to make a copy of 

Washington’s complaint at the March 3 meeting. Ferguson testified he was not given a 

copy of the written complaint at that meeting, and said the officers testifying otherwise 

“are being untruthful.” 

As noted, Ferguson was terminated on March 9. The Texas Commission on Law

Enforcement Officer Standards and Education separation report and the City’s 

personnel action form are dated that day. He was informed of his termination at a 

meeting that day with Chief of Police Mull, Lieutenant Guerra, and police Captain 

Derrick McPherson. Ferguson testified he saw the complaint at that meeting, “read it 

and started kind of skimming through it[,]” but was not then given a copy. 

The court heard other conflicting testimony regarding Ferguson’s receipt of a 

copy of the complaint at a March 11 meeting with Chief Mull and Captain McPherson. 

Ferguson testified he was permitted to review a copy of the complaint at that meeting 

but his request for a copy was denied.2Ferguson told the court he did not actually 

 

2

The record contains a March 21, 2011 letter to Ferguson’s attorney from the 

City Attorney. In that letter, the City Attorney stated in part, “As for your concern about 

the disciplinary action violating the Texas Government Code, Chapter 614, Subchapter 

B, the Officer was given a copy of the complaint to review which he read, and he did 

watch the recording of his arrest of the complainant. He asked if his attorney could get a 

copy, and he was told that he could. At this time copies of both are being copied to 

accompany your Open Records Request.”
4

receive a copy of the written complaint until after his employment was terminated,

during a meeting on March 23.3

After unsuccessfully appealing the termination decision to the City’s grievance 

committee and then to the City manager, Ferguson filed suit, seeking issuance of a writ 

of mandamus and a declaration that the City’s actions violated Government Code 

sections 614.021, 614.022, and 614.023. See TEX. GOV’T CODE ANN. §§ 614.021, 

614.022, 614.023 (West 2014). The relief Ferguson sought included reinstatement to 

his former position as police officer. After conducting a three-day trial, the court granted 

Ferguson’s request for a writ of mandamus and a permanent injunction. The court 

signed a judgment that included language ordering the defendants to withdraw 

Ferguson’s 2011 termination and reinstate him to his position as a police officer “at the 

rate of pay at the time of dismissal.” The court filed findings of fact and conclusions of 

law and the City timely appealed the judgment.

Analysis

The City’s appeal is presented through four issues, contending: (1) the court 

erred by determining reinstatement was mandatory for noncompliance with section 

614.023; (2) the evidence adduced at trial was legally and factually insufficient to 

support the remedy of reinstatement; (3) the court abused its discretion by ordering the 

City to reinstate Ferguson; and (4) the remedy of reinstatement does not fit the 

circumstances presented.

 

3

The March 23 meeting was the first step of the City’s personnel grievance 

process.
5

Subchapter B of Texas Government Code Chapter 614 addresses the handling 

of complaints against certain peace officers and firefighters. Section 614.022 requires 

that, to be considered by the agency or department head, a complaint against an officer 

must be in writing and signed by the person making the complaint. TEX. GOV’T CODE 

ANN. § 614.022. Section 614.023 provides:

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.

TEX. GOV’T CODE ANN. § 614.023.

“By enacting [Subchapter B], the State provided covered employees with 

procedural safeguards to reduce the risk that adverse employment actions would be 

based on unsubstantiated complaints.” Harris County Sheriff's Civil Serv. Comm'n v. 

Guthrie, 423 S.W.3d 523, 529-530 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(internal citations omitted). Courts have recognized also that the failure of an agency 

governed by the subchapter to provide proper documentation of the complaints against 

an officer impairs the officer's ability to investigate or defend against the complaints. 

See Treadway v. Holder, 309 S.W.3d 780, 785 (Tex. App.—Austin 2010, pet. denied); 

Turner v. Perry, 278 S.W.3d 806, 823 (Tex. App.—Houston [14th Dist.] 2009, pet. 

denied). The State has determined that the value of these protections outweighs the 
6

fiscal and administrative burdens incurred by complying with their requirements. Turner,

278 S.W.3d at 823; see also Treadway, 309 S.W.3d at 784-85.

The trial court’s findings of fact contain findings that Ferguson did not receive a 

copy of Washington’s complaint within a reasonable time and that he did not receive a 

copy at any time before the date of his termination on March 9. The City does not 

challenge those findings on appeal.4 Resultantly, the City does not contest the trial

court’s conclusion its termination of Ferguson violated section 614.023, nor does it 

contest his entitlement to some relief.5 Through its appellate issues, the City challenges 

only the propriety of the trial court’s inclusion of reinstatement among the relief it 

granted Ferguson.

We begin our consideration of the City’s issues by noting that Texas courts have 

treated reinstatement as an equitable remedy. City of Fort Worth v. Jacobs, 382 

S.W.3d 597, 599 (Tex. App.—Fort Worth 2012, pet. dism’d) (citing, inter alia, City of 

Seagoville v. Lytle, 227 S.W.3d 401, 414 (Tex. App.—Dallas 2007, no pet.); City of Elsa 

v. M.A.L., 226 S.W.3d 390, 391-92 (Tex. 2007)). Trial court rulings on the expediency, 

necessity or propriety of grants of equitable relief are reviewed for abuse of discretion. 

Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428-29 (Tex. 2008); see ERI 

Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 873-75 (Tex. 2010) (describing 

 

4 Under settled law, in a bench trial, the trial court, as fact-finder, is the sole judge 

of the credibility of the witnesses. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 

1986). The court may take into consideration all the facts and surrounding 

circumstances in connection with the testimony of each witness and accept or reject all

or any part of that testimony. Munters Corp. v. Swissco-Young Indus., Inc., 100 S.W.3d 

292, 296-97 (Tex. App.—Houston [1st Dist.] 2002, pet. dism'd) (citations omitted).

5

Ferguson’s appellate brief concedes his relief cannot include recovery of lost 

pay and benefits. 
7

courts’ exercise of discretion in fashioning equitable remedies for breach of fiduciary 

duty).

A trial court’s erroneous legal conclusion, even in an unsettled area of law, is an 

abuse of discretion. Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 624 (Tex. 

2005); Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001). By its first issue, the City 

contends the trial court misapprehended the law to require Ferguson’s reinstatement, as 

a mandatory remedy for his termination in violation of section 614.023. The City’s 

contention is based on a statement in the trial court’s findings of fact by which the court 

said, “Non-compliance of the mandates in Texas Government Code 614.023(a) and (b) 

require that the Plaintiff Korey Ferguson is entitled to the relief he requests 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.” The City argues the statement is not a finding of fact but a 

conclusion of law, and reads the statement to reflect a conclusion by the trial court that 

reinstatement was mandatory following the court’s finding of a violation of section 

614.023. Because, the City argues, reinstatement is not a mandatory remedy when 

disciplinary action is taken contrary to the requirements of section 614.023, the trial 

court committed an error of law, requiring reversal.

We do not agree the court’s statement necessarily carries the meaning the City 

ascribes to it. Where findings of fact are subject to more than one reasonable 

construction, they should be given the meaning which will support the judgment.

Rodriguez v. Rodriguez, 860 S.W.2d 414, 418 (Tex. 1993) (citing De Llano v. Moran,

160 Tex. 490, 333 S.W.2d 359, 360 (1960)); see Gulf Liquid Fertilizer Co. v. Titus, 163 

Tex. 260, 354 S.W.2d 378, 385 (1962) (if findings are susceptible of different 
8

constructions, they are construed, if possible, in harmony with the judgment and to 

support it). The statement on which the City bases its argument, contained within the 

court’s findings of fact, reasonably can be read as applying individually to Ferguson in 

the context of the other facts of the case, rather than as stating a conclusion of law. 

Rodriguez, 860 S.W.2d at 418. Accordingly, we are not required to read the trial court’s 

finding as a legal conclusion, and thus have no need to address the City’s contention 

the trial court erred in a conclusion the statute mandated Ferguson’s reinstatement.6 

We turn, then, to consideration of the City’s third and fourth issues, by which it 

challenges Ferguson’s reinstatement as an abuse of discretion. A trial court abuses its 

discretion if it rules unreasonably or arbitrarily, without reference to guiding rules or 

principles. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A court also abuses its 

discretion if it rules without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 

573, 578 (Tex. 2012) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)).

The City asserts the trial court had before it no evidence supporting Ferguson’s 

reinstatement. Rather, it contends, all of the evidence was to the contrary, showing

Ferguson was unfit and had a history of rule and policy violations within the police 

department. The record shows Ferguson had been disciplined on several occasions. 

The incidents were resolved through verbal reprimands and short suspensions. One 

 

6 Accordingly, while we are conscious of the opinions of the Tyler and Austin 

courts of appeals in City of Athens v. MacAvoy, 353 S.W.3d 905 (Tex. App.—Tyler 

2011, pet. denied), and Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App.—Austin 

2013, no pet.), we do not consider their potential application here. See MacAvoy, 353 

S.W.3d at 910 (hearing examiner acting under chapter 143 of the Local Government 

Code exceeded his jurisdiction by dismissing discipline against police officer because of 

city’s violation of section 614.023); Bracey, 417 S.W.3d at 112 (analyzing and applying 

holding of MacAvoy). 
9

infraction involved speeding with a civilian in Ferguson’s patrol car. The City also points 

to the evidence of Ferguson’s misconduct in his interaction with Washington. It cites 

Coughlin’s testimony expressing his opinions that Ferguson is “not suited to be a police 

officer” and that reinstatement would provide him the “opportunity to abuse more 

citizens.” The City also argues evidence showed Ferguson’s reinstatement would 

cause disruption in the police department, and would require the department to create a 

position for him, effectively diminishing the department’s patrol force and thus 

endangering the public.

The City further argues that while Ferguson may not have actually received a 

copy of Washington’s complaint before his termination, there is evidence he read it 

before being terminated, and even Ferguson testified he was well aware of the reason 

for his termination. It also points to the day-long post-termination hearing conducted 

before the City’s grievance committee, and notes Ferguson was represented by counsel 

throughout the post-termination proceedings. All these facts, the City contends, 

demonstrate that the purpose of the statute was fulfilled in Ferguson’s case and the trial 

court abused its discretion by ordering his reinstatement. Finally, the City argues the 

court’s reinstatement order is contrary to the City’s charter provisions7empowering the 

City Manager to discipline employees when necessary, and its status as an at-will 

employer.

There is evidence, however, that the trial court could have seen as supporting 

the remedy of reinstatement. The City was fully aware of the statutory requirement that 

 

7 The City has not adopted the state civil service provisions in Chapter 143 of the

Local Government Code. See TEX. LOC. GOV’T CODE ANN § 143.002(a).
10

a citizen’s complaint be provided to an officer within a reasonable time of its filing. The 

requirement was referred to in the City’s manual containing general orders and 

disciplinary procedures. And, as noted, the City does not challenge the court’s finding 

Ferguson was not given a copy of the complaint before his termination.

The trial court could have taken into consideration the evidence that Ferguson’s 

decision to arrest Washington was not incorrect. Sergeant Kris Marble, a supervisor, 

and Corporal Scott Young, an officer with more experience than Ferguson, approved 

Washington’s arrest when Ferguson booked her into the jail. Chief Mull testified in his 

deposition that while it might have been unnecessary, the force Ferguson used against 

Washington was reasonable. Mull also testified that Ferguson “as a rule, has a good 

attitude. And as a rule, he did a fairly good job.” Ferguson further points to the fact 

Lieutenant Guerra, the investigating officer, initially prepared only a reprimand for 

Ferguson. 

The trial court also could have considered evidence indicating the department’s 

investigation into Washington’s complaint against Ferguson was incomplete. Guerra 

acknowledged he failed to follow Department policy in handling the investigation of 

Ferguson’s arrest of Washington, and admitted he should have, but did not, document 

the steps he and other officers took during the investigation. Neither Young nor 

Ferguson was interviewed. Nor, during the investigation, was Ferguson shown the

video of the Washington arrest.

Lastly, the court had before it the department’s written performance evaluation of 

Ferguson, prepared in September 2010 on the anniversary of his hiring. Ferguson’s 

marks on the evaluation are favorable, indicating he “meets standards” in all categories 
11

but one, “volume of acceptable work,” on which he received a mark indicating he 

“exceeds standards.” He received a “step raise” in pay. The evaluation’s comments 

section read:

Officer Ferguson has been on day shift for approximately two 

months: He has become a productive member of the shift. His reports are 

done well and his citations and traffic enforcement has greatly improved. 

He does need to work on his time management so his work will be 

completed in a timely manner. His Officer safety is good and he readily 

accepts direction when needed. Officer Ferguson has had a trying few 

months lately on a personal level but has stayed professional and 

courteous.

Officer Ferguson is proving himself to be an asset to the City and 

the Department. He should be advanced to the next step and retained in 

good standing.

“A trial court does not abuse its discretion if it bases its decision on conflicting 

evidence and some evidence supports its decision.” In re Barber, 982 S.W.2d 364, 365 

(Tex. 1998). The court heard conflicting evidence bearing on the propriety of 

Ferguson’s reinstatement to his position as police officer. We are unable to conclude 

the court’s order of reinstatement was an abuse of discretion. The City’s third and 

fourth issues are overruled.

Having reviewed the trial court’s imposition of the remedy of reinstatement under 

the proper standard of review, we need not consider further the City’s issue two, which 

asserts the legal and factual insufficiency of evidence supporting reinstatement. 

Accordingly, we affirm the order of the trial court.

James T. Campbell

 Justice