I recently had a peace officer client who was fired after a couple of days on the job. His employer was a small town police department with few employees. The chief gave my client a “general” designation on his F5 report. As I started working on his appeal, I was surprised to learn that the city basically had no documents relating to an investigation of my client.
This appeared to be a clear violation of chapter 614 of the Texas Government Code. Under chapter 614, a licensed peace officer cannot be disciplined based on a “complaint” unless the complaint is in writing, signed by the complainant, and presented to the peace officer within a reasonable time, and termination may not be “based on the subject matter of the complaint” unless the complaint is investigated and there is evidence to prove the allegation of misconduct.
There was no complaint in writing; it had never been presented to my client; there was no evidence of any true investigation. You would think that all of these factors would lead to a simple conclusion – my client was improperly fired and therefore his F5 should be changed to “honorable.”
As I did more research, I learned that this same small town had given less-than-honorable discharges to several peace officers. The issue of the lack of proper documentation came up in at least one of those cases. I also learned that the town had won those cases! What was going on?
One of the lawyers in one of those cases pointed me to the reason – the State Office of Administrative Hearings (“SOAH”) administrative law judges (“ALJs”) had decided that a poorly documented discharge was not a barrier to sustaining a bad F5. The explanation? The F5 appeal statute focuses the judge’s attention on one question – did the alleged misconduct actually take place? If the misconduct occurred, then the F5 is sustained by the judge.
This interpretation of the law has been appealed. In one unreported decision issued in 2020, McCall v. Hays County Constable Precinct Three, the Texas Third Court of Appeals determined that the ALJ was not required to consider Chapter 614 or use it as a reason to exclude evidence against the peace officer in that case. The Third Court of Appeals found there was sufficient evidence to find that the peace officer had, in fact, not followed department guidelines.
The McCall case is a good example of “bad facts make bad law.” The officer was accused of allowing his underage girlfriend to drink alcohol. The officer had told another officer that his girlfriend was intoxicated and that statement started the discharge process. If the test is “does the predominance of the evidence show that the alleged misconduct occurred,” there was sufficient evidence against officer McCall.
The McCall case stands as a warning to officers that want to appeal an adverse F5 – don’t rely on the fact that your department did not follow proper procedure in discharging you. You have to be prepared to demonstrate that you did not commit the alleged misconduct. I would be willing to argue in the right case that the lack of documentation should go to the credibility of the decision to terminate – but I don’t know how an ALJ would rule in that kind of case.
My client had a lot happen in his life that had nothing to do with his F5 appeal. He decided to focus on the other challenges and not go forward with his F5 appeal. I understood his decision.
If you are a Texas peace officer with an adverse F5, please give me a call or drop me an email. I will provide you with a free evaluation of your case. If I think I can help you, I will fight with all of my skill and experience to get you a better F5. Please contact me quickly – there are some super-tight deadlines in F5 cases that you do NOT want to miss.