I fight for Texas peace officers who are trying to defend their licenses. In Texas, a policeman or other peace officer who gets a “general” or “dishonorable” discharge has the ability to appeal that decision to the State Office of Administrative Hearings (“SOAH”). The case is heard by an Administrative Law Judge (“ALJ”). The ALJ has the power to order the discharging agency to change the discharge to “honorable,” if the ALJ finds that the original F5 designation was done on an inaccurate basis.
Most of these F5 appeals are fairly straightforward – did the officer do what he or she was accused of doing? For example, I had a case where my client was accused of throwing a chair. My client won when we saw a video of a chair peacefully rolling into a hallway. Those cases are comparatively simple.
However, it is also possible for an F5 appeal to be as complex as a jury trial. If you are a peace officer wanting to appeal your F5 in Texas, you need to be aware that you could wind up in one of these cases. If you do, you need to retain an experienced lawyer or attorney who knows about F5 cases. Some of the signs of complex case are:
• Depositions – In a deposition, the lawyer for the department can ask you questions. In a recent case, I spent a day preparing my client for the deposition with a long list of “do’s and don’t’s.” The deposition went for much of a day and was recorded on videotape. If you get a notice of deposition in your F5, call a lawyer immediately!
• Requests to Admit – My client was served with a list of statements and asked to “admit” or “deny” those statements. If he had admitted all of them, his case would have been over. Even as a lawyer, I found it difficult to accurately answer the questions. I cannot imagine what would have happened if he had not had a lawyer advising him on the answers.
• Document Production – You can be asked for just about every document that is in your possession that might relate to the facts of your case. I had a client who was very organized and had a lot of documents. We had to organize them, copy them and number them sequentially. By the end of that case, we had produced five different CDs of documents. We also received five or six CDs worth of documents from the other side. You need a lawyer to help you work through both your answers and your questions to the other side.
• Interrogatories – Depositions are not the only way the other side can ask you questions. They can send you a list of questions in writing and make you answer them. You can be asked things like, “Who have you discussed this case with” and then be asked to list the day, time and topics of discussion. Some questions are legitimate and some are objectionable. If you get an interrogatory, you need the help of an experienced lawyer.
• Confidential Documents – In the course of discovery in one case, we found that the department had a public personnel file for my client and had other information in confidential files maintained by his supervisors and superiors. The department wanted to rely on these documents – that my client had never seen or known about – to prove that he had “documented performance problems.” I personally find it very objectionable for a department to rely on such documents. However, the ALJ in that case was not as disturbed. It took a great deal of discovery for us to finally turn up those documents. You need the experience of an attorney in order to get all of these types of documents.
• Videotapes and Audio Recordings – Many departments now require officers to wear body cameras. Many jails or prisons have 24 hour cameras. Cell phones and other recording devices might also produce useful information in a case. As I mentioned earlier, one F5 case was essentially resolved with a videotape showing that the accusation against my client was inaccurate. You need to obtain all the possible recordings that might bear on your case. You also need to be prepared to have an attorney review and produce any recordings you might have in your possession. If you have such recordings, please tell your lawyer very early in the process.
As you might have gathered by now, I think every peace office who has an F5 appeal in Texas should have a lawyer to help present their case. In all likelihood, the department will have a lawyer and that attorney will know much more than you know about the rules of evidence and the procedural steps in a case. If you do not have an attorney on your side, you will be at a significant disadvantage. This is especially true in a complex F5 appeal. If you are a Texas peace officer and you need a lawyer to fight for you, please contact me at firstname.lastname@example.org and we can discuss your case.