In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00083-CV ________________
DONNA COTTON, Appellant
V.
MONTGOMERY COUNTY CIVIL SERVICE COMMISSION AND MONTGOMERY COUNTY, TEXAS, Appellees
________________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 23-02-02104-CV ________________________________________________________________________
MEMORANDUM OPINION
Donna Cotton (“Cotton”), a Montgomery County Sheriff’s Office dispatcher
supervisor, appealed her demotion and two-day suspension to the Montgomery
County Civil Service Commission (the “Commission”), and once the Commission
upheld same, she appealed to a Montgomery County District Court pursuant to
section 158.012 of the Texas Local Government Code. See Tex. Loc. Gov’t Code
1 Ann. § 158.012. Cotton now challenges Summary Judgment Orders in favor of
Montgomery County, Texas (the “County”). She argues that it was error to grant the
County’s No-Evidence and Traditional Motions for Summary Judgment because
evidence was submitted outside the confines of the grievance hearing to the
Commissioners and because the Commissioners refused Cotton’s appeal of the two-
day suspension. We hold that the District Court did not err in granting the County’s
No-Evidence Motion for Summary Judgment and that the Montgomery County Civil
Service Regulations (the “Regulations”) permitting appeal of suspensions of more
than three days is not contrary to law. For the reasons discussed below, we affirm
the District Court’s Order granting summary judgment.
Background
In February 2023, Cotton filed Plaintiff’s Original Petition against the County
and the Commission. In the Petition, Cotton appealed the Commission’s decision
made on January 30, 2023, pursuant to section 158.012 of the Texas Local
Government Code. See id. § 158.012(a) (authorizing an appeal of a final decision by
the commission by a county employee by filing a petition in district court within 30
days of the decision). Cotton petitioned for reversal of the decision pursuant to
section 158.0121. See id. § 158.0121 (requiring the district court to review the
commission’s decision under the substantial evidence rule). Cotton requested that
2 she be permitted to present additional evidence about procedural irregularities at the
grievance hearing. Cotton requested that the Commission’s decision be set aside and
that the District Court reverse the Commission’s decision, order back pay and
benefits, purge her personnel file of documents and materials related to the
disciplinary action subject of this appeal, and all court costs and attorney’s fees.
On April 12, 2023, the County and the Commission filed Defendants’ Answer
and Special Exception and generally denied all Cotton’s allegations and pleaded the
affirmative defense of governmental immunity. Defendants’ Answer included a
special exception to Cotton’s Petition because it failed to give sufficient notice of
the “procedural irregularities” at the grievance hearing.
On May 23, 2023, Cotton filed Plaintiff’s First Amended Original Petition
and alleged that she was disciplined by the Montgomery County Sheriff’s Office
with a demotion and two-day unpaid suspension. Cotton stated that she appealed the
discipline, and a hearing was held on January 30, 2023. According to Cotton, the
demotion was upheld but she was not permitted to appeal the two-day suspension
per the Commission, based on the local rule on suspensions of three days or less.
Cotton pointed out that she later learned that before the hearing, the Commission
received evidence from the County and that this submission of evidence outside the
3 hearing deprived her of a fair hearing and due process. Cotton requested relief
identical to the relief requested in Plaintiff’s Original Petition.
On January 12, 2024, the Commission filed Montgomery County Civil
Service Commission’s Plea to the Jurisdiction. In the Plea, the Commission argued
that it is not a separate legal entity and lacks the legal capacity to be sued. The
Commission argued that alternatively, governmental immunity bars Cotton’s action
and deprives the Court of subject-matter jurisdiction against it.
That same day, the County and the Commission filed Defendants’ No-
Evidence Motion for Summary Judgment and separately, Defendants’ Motion for
Summary Judgment. Both summary judgments were subject to the Plea to the
Jurisdiction filed on behalf of the Commission. In the No-Evidence Motion for
Summary Judgment, the County and the Commission argued that Cotton presented
no evidence that she was deprived of a fair hearing or due process, that the
Commission’s decision was not supported by substantial evidence, or that the
Commission could be sued. The County and the Commission argued that before the
hearing, Cotton had notice of all exhibits that would be offered and that Cotton
presented no evidence that: she was denied a fair hearing or due process; she was
not allowed to present evidence at the hearing; she was not allowed to review and
challenge all evidence provided to the Commission before the hearing’s conclusion;
4 she was not allowed to cross-examine witnesses; or she was not allowed to rebut,
object to, or cross-examine witnesses and evidence.
In Defendants’ Motion for Summary Judgment, the County asserted that in
September 2022, Cotton, a dispatcher supervisor with the Montgomery County
Sheriff’s Office (“MCSO”), received official written notice that she was the subject
of an investigation for violating the policies of MCSO between April and September
2022. Cotton was accused of “engaging in behavior, in her position as a supervisor,
that had the effect of demeaning, humiliating, and intimidating subordinates in her
command.” At the time of Cotton’s alleged misbehavior, Cotton had been
disciplined and was on probation for similar behavior. As a result of the
investigation, Cotton was found to have violated four policies that included: (1)
engaging in any behavior meant to or which has the effect of intimidating or
humiliating another individual including bullying, gossiping, harassment, and verbal
abuse; (2) acting, on or off duty, in a manner that discredits the MCSO; (3) violating
the MCSO policy that requires all employees to conduct themselves in a manner
which does not bring about a question of integrity and exhibits the highest degree of
professionalism; and (4) violating the rules and regulations of the Civil Service
Commission, Commissioners Court, or the hiring authority. Cotton was suspended
5 for two days, demoted to dispatcher, and her probationary period was extended an
additional six months.
In November 2022, the County Sheriff upheld the finding and disciplinary
actions, and Cotton then completed the Employee Grievance Form appealing the
demotions and suspension to the Commission. On December 22, 2022, the
Commission responded to Cotton’s grievance and indicated that a suspension of two
days could not be grieved, but that the demotion could, and therefore, only the
demotion should be presented. On January 30, 2023, the Commission heard
testimony from seven witnesses and admitted thirty-nine exhibits submitted by the
County. The Commission did not exclude or limit any witnesses, testimony, exhibits
or evidence submitted by Cotton. The Commission ultimately affirmed Cotton’s
demotion and removed the six-month probationary period from her record.
The Summary Judgment Motion detailed the testimony of the seven current
and former MCSO employees, including Cotton, that testified at the hearing about
Cotton’s behavior and the investigation of the allegations against Cotton. The
Motion stated that the thirty-nine exhibits admitted included statements from other
employees, details of the investigation, performance reports, progress reports, and
copies of the policies Cotton violated.
6 The County argued that Cotton received a fair hearing and was afforded due
process at the hearing. The County also contended that it submitted—to Cotton and
the Commission—the list of witnesses, documents and exhibits to be presented at
the hearing with its Response to the Employee Grievance Form within five business
days of receipt of Cotton’s grievance form, as required by the Regulations.
According to the County, Cotton had every opportunity to present witnesses, testify
on her behalf, present exhibits, and challenge any evidence submitted by the County
during the hearing. The County further argued that Cotton was not permitted to
challenge the two-day suspension because the suspension did not exceed three days
in accordance with the Regulations and that the Commission is not a proper party to
the suit.
Included with Defendants’ Motion for Summary Judgment is Cotton’s
Grievance Hearing Transcript dated January 30, 2023, the Commission’s final
decision dated February 15, 2023, Montgomery County Civil Service Regulations
approved and effective July 7, 2004, Cotton’s Employee Grievance Form dated
November 18, 2022 with thirty-nine exhibits and witness list submitted by the
County, Business Record Affidavit of Dodi Shaw dated January 9, 2024, electronic
mail messages dated November and December 2022, between Dodi Shaw and Greg
Cagle, and the Deposition Transcript of Dodi Shaw dated November 1, 2023.
7 On January 26, 2024, Cotton filed Plaintiff’s Response to Defendants’
Traditional and No-Evidence Motion for Summary Judgment. In her Response,
Cotton challenges the evidence submitted to the Commission by the County and
argues that the Regulations do not authorize Civil Service Director Dodi Shaw to
forward unadmitted exhibits to the Commissioners. According to Cotton, the
Regulations required the County to submit to the Human Resources Department
copies of documents to be presented at the hearing. Cotton argues that the
Regulations do not contain any language that authorize submission of exhibits to the
Commission other than at the hearing. Cotton further challenged the Commission’s
disallowing of the appeal of Cotton’s two-day suspension and argued the
Commission could not adopt a rule prohibiting the appeal of a disciplinary action.
On February 8, 2024, the trial court signed an Order Granting the Montgomery
County Civil Service Commission’s Plea to the Jurisdiction and dismissed the
Commission as a defendant. Subsequently, that same day, the trial court signed an
Order Granting Defendants’ No-Evidence Motion for Summary Judgment.
Separately, but on the same day, the trial court signed an Order Granting Defendants’
Motion for Summary Judgment.
This appeal followed.1
1 Cotton does not appeal the Order Granting the Commission’s Plea to the Jurisdiction. Therefore, we address only Cotton’s appeal against the County as it is 8 On appeal, Cotton challenges the granting of the County’s Traditional and No-
Evidence Motions for Summary Judgment and argues that the County’s submission
of evidence outside the confines of the hearing was unlawful and prejudiced her
substantial rights, and she challenges the Regulation adopted by the Commission
disallowing the appeal of suspensions that do not exceed three days. According to
Cotton, the Regulations provide that exhibits are to be offered at the grievance
hearing and only submitted to the Human Resources Department before the hearing.
Cotton argues that because the Commission received and reviewed evidence before
the hearing, she was not given a fair or impartial hearing.
Cotton then argues that the disallowing of an appeal of three days or less
cannot be what the legislature intended when it required the Commission to adopt
rules for grievances and disciplinary actions. Cotton contends that permitting the
Commission to adopt said rule does not protect the procedural and substantive rights
of county employees.
Standard of Review
We review grants of summary judgment de novo. Cantey Hanger, LLP v.
Byrd, 467 S.W.3d 477, 481 (Tex. 2015). In our review we take as true all evidence
favorable to the nonmovant, indulge every reasonable inference in favor of the
the only remaining party despite Cotton’s reference to the Commission, as an appellee, throughout her brief. 9 nonmovant, and resolve any doubts in the nonmovant’s favor. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The defendants filed both a no-
evidence and a traditional summary judgment motion. See Tex. R. Civ. P. 166a(c),
(i). When a party moves for both traditional and no-evidence summary judgments,
we first consider the no-evidence motion. Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004). If the non-movant fails to meet its burden under the no-
evidence motion, there is no need to address the challenge to the traditional motion
as it necessarily fails. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
2013). Thus, we first review each claim under the no-evidence standard and any
claims that survive the no-evidence review will then be reviewed under the
traditional standard.
To defeat a no-evidence motion, the non-movant must produce evidence
raising a genuine issue of material fact as to the challenged elements. See Ridgway,
135 S.W.3d at 600; see also Tex. R. Civ. P. 166a(i). A genuine issue of material fact
exists if the evidence “rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d
497, 499 (Tex. 1995)). The evidence does not create an issue of material fact if it is
“so weak as to do no more than create a mere surmise or suspicion” that the fact
10 exists. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014) (quoting
Ridgway, 135 S.W.3d at 601).
A county employee who has been demoted from the employee’s position may
appeal such demotion by filing a complaint with the Commission and may appeal a
final decision of the Commission by filing petition in a district court in the county.
See Tex. Loc. Gov’t Code Ann. § 158.012(a). “An appeal under this section is under
the substantial evidence rule, and the judgment of the district court is appealable as
in other civil cases.” Id. § 158.012(b). Under the substantial evidence rule:
[T]he district court may not substitute its judgment for the judgment of the commission on the weight of the evidence on questions committed to the commission’s discretion but: (1) may affirm the commission’s decision in whole or in part; and (2) shall reverse or remand the case for further proceedings if substantial rights of the petitioner have been prejudiced because the commission’s findings, inferences, conclusions, or decision are: (A) in violation of a constitutional or statutory provision; (B) in excess of the commission’s authority; (C) made through unlawful procedure; (D) affected by other error of law; (E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (F) arbitrary or capricious, characterized by abuse of discretion, or clearly an unwarranted exercise of discretion.
Id. § 158.0121.
It is the burden of the party appealing to the district court to show that the
Commission’s decision prejudiced a substantial right and violated at least one of the
11 six elements in section 158.0121(2). See Dep’t of Pub. Safety v. Varme, 262 S.W.3d
34, 38 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see also Tex. Loc. Gov’t
Code Ann. § 158.0121(2). Whether the Commission’s decision was supported by
substantial evidence is a question of law. See Kaup v. Tex. Workforce Comm’n, 456
S.W.3d 289, 294 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (discussing
“substantial evidence” standard in context of review of Texas Workforce
Commission decision). “Review under the substantial-evidence rule is highly
deferential—the issue is not whether the agency’s decision is correct, but whether
the record demonstrates a reasonable basis for it.” North East Indep. Sch. Dist. v.
Riou, 598 S.W.3d 243, 251 (Tex. 2020) (citing City of El Paso v. Pub. Util. Comm’n
of Tex., 883 S.W.2d 179, 185 (Tex. 1994)). The fact finder, here the Commissioners,
are the sole judges of witness credibility and are free to accept or reject any or all
the testimony of any witness and courts presume substantial evidence supports the
Commission’s determination. See Granek v. Tex. State Bd. of Med. Exam’rs, 172
S.W.3d 761, 778–79 (Tex. App.—Austin 2005, no pet.). “If there is substantial
evidence which supports the order, the courts are bound to follow the discretion of
the administrative body.” Firemen’s and Policemen’s Civ. Serv. Comm’n v.
Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984).
12 Analysis
In Cotton’s live petition, Cotton alleged that she was deprived of a fair hearing
and due process because she was not permitted to challenge her two-day unpaid
suspension and because the County submitted evidence to the Commission outside
the hearing. Eleven months after Plaintiff’s Original Petition, the County filed
Defendants’ No-Evidence Motion for Summary Judgment and argued that Cotton
had no evidence that she was deprived of a fair hearing or due process and that
Cotton had produced no evidence that the Commission’s decision was not supported
by substantial evidence.
Cotton responded and stated that she incorporated by reference the Exhibits
submitted with the County’s summary judgment motions. Cotton then argued that
the submission of evidence to the Commissioners before the hearing deprived her of
due process and that the Regulation that disallowed the appeal of a suspension of
three days or less is contrary to the law. However, Cotton provided no evidence that
the submission to the Commissioners deprived her of due process or a fair hearing.
Even if we consider the evidence submitted by the County which included Cotton’s
Grievance Hearing Transcript dated January 30, 2023, the Commission’s final
decision dated February 15, 2023, Montgomery County Civil Service Regulations
approved and effective July 7, 2004, Cotton’s Employee Grievance Form dated
13 November 18, 2022 with thirty-nine exhibits and witness list submitted by the
County, Business Record Affidavit of Dodi Shaw dated January 9, 2024, electronic
mail messages dated November and December 2022, between Dodi Shaw and Greg
Cagle, and the Deposition Transcript of Dodi Shaw dated November 1, 2023, such
evidence does not support either of Cotton’s arguments. Rather, the evidence
strongly supports the County’s argument that Cotton had a fair hearing. For example,
the deposition transcript of Dodi Shaw, Human Resources Director and Civil Service
Director for the County was included with the County’s summary judgment motion.
Shaw testified that when she received Cotton’s grievance form filed on November
18, 2022, she immediately sent a copy of it to the County Attorney’s office. Shaw
then testified that she sent a copy of the County’s thirty-nine exhibits to the
Commissioners before the January 30, 2023, grievance hearing, and that she sent the
same exhibits and information to Cotton. Shaw testified that she did not provide the
Commissioners with any admonishments or instructions regarding the exhibits and
only stated that the documents were the County’s exhibits. Shaw also testified that
when she sent the County’s exhibits to the Commissioners, she also sent the
information and exhibits filed by Cotton. Shaw’s testimony is clear that not only did
she submit the County’s evidence outside the confines of the grievance hearing, but
she sent the same evidence to Cotton and sent Cotton’s exhibits to the
14 Commissioners. This evidence does not show that Cotton was denied a fair hearing
or denied due process. Instead, the evidence establishes that Shaw, on behalf of the
County, ensured that the Commissioners had all the evidence to be submitted from
both parties, before the hearing. Further evidence demonstrates that Cotton cross-
examined the County’s witnesses at the grievance hearing and questioned witnesses
about personnel complaints against Cotton that were included in the County’s
exhibits. The record confirms that Cotton also testified on her own behalf.
Additionally, Regulation 4.03(C) specifically states that “[t]he Commission is
an administrative body and particularly will not be bound by technical rules of
evidence.” Cotton does not point to any document received by the Commission that
unfairly prejudiced her, nor does she identify a provision or Regulation that prohibits
the submission of evidence to the Commissioners by the Human Resources Director
prior to the beginning of the hearing.
We conclude the trial court did not err in granting the County’s summary
judgment because Cotton failed to demonstrate or provide evidence that she was
deprived of a fair hearing or due process. We overrule Cotton’s first issue.
Next, Cotton challenges the Commission’s refusal to hear the appeal of her
two-day suspension. According to Cotton, when requiring the Commission to adopt
15 rules for grievances and disciplinary actions, the legislature could not have intended
for the Commission to adopt a regulation prohibiting appeals of certain suspensions.
Chapter 158 of the Texas Local Government Code governs the County Civil
Service System of County Officers and Employees. See generally Tex. Loc. Gov’t
Code Ann. ch. 158. The chapter authorizes the Commission to “adopt, publish, and
enforce rules” over certain matters including:
(6) disciplinary actions; [and]
(7) grievance procedures[.]
Id. § 158.009(a)(6), (7).
Cotton testified that she had been employed with the MCSO since 2007, and
on appeal, she does not dispute that she is an employee covered by the Regulations.
Here, Cotton specifically challenges the Commission’s provision that only
authorizes a grievance of suspension of more than three days. The Regulation states
“Under the ‘Powers of the Commission,’ as cited in Section 158.009 2 of the Texas
2 We quote Texas Local Government Code section 158.009 as cited in the Montgomery County Civil Service Regulations 4.00. However, we note that Subchapter B (sections 158.031-.42) is applicable including the Powers of Commission in section 158.035. See Tex. Loc. Gov’t Code Ann. § 158.035. Both sections 158.009 and 158.035 authorize the commission to adopt, publish, and enforce rules regarding disciplinary actions and grievance procedures. Id. §§ 158.009, 158.035. Neither party argues on appeal that the Regulations cite an incorrect section.
16 Local Government Code, and these Regulations, any Civil Service employee of the
county who has completed his/her probationary period may file a grievance only in
matters of discharge, involuntary demotion, or suspension of more than three (3)
days.” See Montgomery County Civil Service Regulations, Ch. 4.00.
When construing statutory language, we look to and rely on the plain meaning
of a statute’s words as expressing legislative intent unless a different meaning is
supplied, is apparent from the context, or the plain meaning of the words leads to
absurd or nonsensical results. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430
S.W.3d 384, 389–90 (Tex. 2014). We read the words and phrases in a statute “in
context and construed according to the rules of grammar and common usage.” Tex.
Gov’t Code Ann. § 311.011. We further presume “the Legislature chooses a statute’s
language with care, including each word chosen for a purpose, while purposefully
omitting words not chosen.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d
432, 439 (Tex. 2011). Through Chapter 158, the Legislature authorized
Commissioners to construct and enforce rules pertaining to certain matters,
including disciplinary actions and grievance procedures. See Tex. Loc. Gov’t Code
Ann. § 158.009(a)(6), (7). Though Cotton argues that the Commissioners should not
be able to prohibit the appeal of suspensions of three days or less, Cotton fails to
point to any rule or provision that restricts or prohibits the Commissioners from
17 doing so, and section 158.009 expressly authorizes the Commissioners to construct
laws pertaining to disciplinary action and grievance procedures. See Crosstex
Energy Servs., L.P., 430 S.W.3d at 389 (explaining that we rely on the plain meaning
of a statute’s words as expressing legislative intent); see Tex. Loc. Gov’t Code Ann.
§ 158.009(a)(6), (7). We overrule Cotton’s second issue.
Conclusion
Having considered and overruled both of Cotton’s issues, we affirm the trial
court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON Chief Justice
Submitted on December 4, 2025 Opinion Delivered March 26, 2026
Before Golemon, C.J., Johnson and Wright, JJ.