NUMBER 13-21-00123-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
WILLIAM BUCK, IN HIS OFFICIAL CAPACITY AS FIRE CHIEF FOR THE PORT OF HOUSTON AUTHORITY; MARCUS WOODRING, IN HIS OFFICIAL CAPACITY AS THE CHIEF PORT SECURITY AND EMERGENCY OPERATIONS OFFICER FOR THE PORT OF HOUSTON AUTHORITY; ROGER GUENTHER, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE PORT OF HOUSTON AUTHORITY; AND ROGER WALTER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF HUMAN RESOURCES OF THE PORT OF HOUSTON AUTHORITY, Appellants,
v.
STAN KOZLOWSKI, JASON HALL, MIKE STALLINGS, JASON ROBERTS, KYLE JORDAN, AND JUSTIN MEADOR, Appellees. On appeal from the 234th District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva Memorandum Opinion by Justice Silva
Appellants William Buck, in his official capacity as Fire Chief for the Port of Houston
Authority; Marcus Woodring, in his official capacity as the Chief Port Security and
Emergency Operations Officer for the Port of Houston Authority; Roger Guenther, in his
official capacity as Executive Director of the Port of Houston Authority; and Roger Walter,
in his official capacity as Director of Human Resources of the Port of Houston Authority,
appeal a temporary injunction enjoining them from taking disciplinary action against
appellees Stan Kozlowski, Jason Hall, Mike Stallings, Jason Roberts, Kyle Jordan, and
Justin Meador.
Appellants argue that appellees’ claims, and by extension the temporary injunction,
are moot. Alternatively, appellants argue the trial court’s entry of a temporary injunction
was clear error because: (1) appellees failed to show a probable right to relief;
(2) appellees failed to show a probable, imminent, and irreparable injury; (3) the
temporary injunction “[u]pends, [r]ather than [m]aintains, the [s]tatus [q]uo”; and (4) the
trial court was limited to providing procedural due process relief to appellees and
exceeded its authority by awarding substantive protections. We reverse and render in
part and affirm in part.
2 I. BACKGROUND 1
Appellees are all firefighters for the Port of Houston Authority (Port Houston) and
members of the International Association of Fire Fighters Local 1316 (Union), a labor
union. Additionally, Kozlowski was the Union president, Hall was the vice president,
Stallings was the treasurer, and Jordan was the secretary. In April 2020, firefighter Luke
Beard reported to Union leaders, including Kozlowski, that training officer Robert Jones
“promised that [Beard] would receive a promotion[] if he made [a] false complaint” of unfair
treatment by Stallings. Union leaders therein reported the allegations to Port Houston
human resources director, Walter. After meeting with Jones, Port Houston officials
determined that a third-party investigator should investigate the allegations made by
Beard, and also investigate allegations of misconduct that Jones made against appellees.
Port Houston hired DeDe Church & Associates (Church) to conduct the investigation.
Church investigator Sandra Lauro interviewed multiple witnesses within Port Houston and
ultimately generated a report that included her findings.
Lauro determined that there was sufficient evidence to support some of Jones’s
allegations of misconduct. Specifically, Lauro found sufficient evidence to support an
allegation that several appellees convinced rookies to perform a faux “radar calibration”
as a method of hazing. Lauro also found sufficient evidence to support Jones’s allegation
that Kozlowski, Stallings, Hall, Jordan, and Meador made derogatory remarks relating to
Jones’s disability caused by an injury that he sustained in the military. Lauro also
1 This case is before this Court on transfer from the First Court of Appeals in Houston pursuant to
a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
3 concluded that “[t]he investigation does not support that [Jones] pressured [Beard] to file
a false or frivolous hostile work environment complaint against [Stallings] in order to get
[Stallings] or others fired.”
Following the investigation and report, Kozlowski, Hall, Stallings, and Roberts were
terminated on July 7, 2020. On July 11, 2020, Jordan and Meador were disciplined but
were not terminated. Jordan and Meador both received a written “disciplinary notice” that
stated what conduct Port Houston found to be unacceptable. The written notices were
signed by a supervisor and Buck. According to appellants, the terminated employees
“were verbally informed of the reasons for their terminations at the time of their
terminations.” On July 22, 2020, Walter sent an email to the terminated employees which
included the reasons for their termination and a copy of Port Houston’s dispute resolution
process policy. All six appellees sought committee review of the employment actions.
Appellees requested a copy of the Church report prior to the review hearing;
however, Walter declined to provide a copy, stating that Port Houston was seeking
guidance from the Office of the Attorney General (OAG) on what, if any, portion of the
report could be released. 2 Originally, Hall asked that the review hearing be delayed until
the OAG ruled on the report, to which Walter agreed. However, Hall ultimately asked that
the review hearing be held before a ruling was made.
2 In their reply brief, appellants assert that the OAG “ultimately agreed with Port Houston, in part,
and instructed that the Port must withhold certain information in response to an Open Records Request based on common-law privacy.” Appellants direct us to an exhibit to their petition in another suit, Port of Houston Authority v. Ken Paxton, Attorney General of Texas, in the 250th district court in Travis County, as a place where the opinion can be found. However, appellants have not provided this Court a copy of the opinion, and it is not found in the record before us. Instead, appellants requests “that [this] Court take judicial notice of this public finding.” Because the opinion is not part of the record before us, we decline to do so. See TEX. R. APP. P. 34.1.
4 On September 17, 2020, the committee held a review hearing where appellees
contested the bases for the employment actions with statements and evidence. The
committee upheld the terminations. 3 Appellees appealed the committee’s decision to
Guenther. Guenther affirmed the committee’s decision on October 13, 2020.
In November 2020, appellees filed suit in federal court alleging, inter alia, that the
terminated employees did not receive the notices required by Texas Government Code
§§ 614.022–.023. See TEX. GOV’T CODE ANN. §§ 614.022 (requiring a complaint be in
writing and signed by the person making the complaint before it may be considered by
the head of a fire department), 614.023 (requiring signed complaint be provided to
complained-of employee “within a reasonable time after the complaint is filed” and before
the imposition of discipline). Appellees further alleged that they were terminated for
engaging in protected speech and actions as Union members and officials. See TEX. LAB.
CODE ANN. §§ 101.001 (establishing the right to organize labor unions), 101.052
(prohibiting denial of employment based on membership status in a labor union), 101.301
(prohibiting interference with the right to work based on membership status in a labor
union); TEX. GOV’T CODE ANN. § 614.004 (prohibiting denial of public employment based
on union membership or nonmembership). The state law claims in the federal suit were
dismissed without prejudice for want of subject matter jurisdiction. See U.S. CONST.,
amend. XI. However, appellees’ federal claims remained live.
Appellees were provided a copy of the Church report through their counsel on
February 24, 2021. On March 2, 2021, Port Houston reinstated the terminated employees
3 No record of the review hearing was provided to this Court.
5 to their pre-termination positions with corresponding compensation and benefits but
placed them on paid administrative leave to provide them the notice required by Chapter
614. See TEX. GOV’T CODE ANN. §§ 614.022–.023. Appellees filed the current suit in the
trial court on March 8, 2021, seeking a declaratory judgment, a temporary restraining
order, a permanent restraining order, a temporary injunction, a permanent injunction, and
mandamus. Appellees alleged that appellants’ disciplinary actions against them
constituted “illegal, ultra vires actions by state officials.”
The trial court granted appellees’ request for a temporary injunction, enjoining
appellants
from taking disciplinary action against [appellees] related to the complaints, which formed the basis for the termination of Kozlowski, Hall, Stallings, and Roberts on or about July 7, 2020[,] and the suspension of Meador and Jordan because [appellants] failed to provide [appellees] with the written complaint within a reasonable time after that complaint was filed.
The temporary injunction further enjoined appellants
from taking any disciplinary action against [appellees] related to their union activity, including representing union members in investigations or disciplinary actions, as protected by Tex[as] Labor Code §§ 101.001, 101.052, and 101.301[,] and Texas Government Code § 617.004.
In support of its temporary injunction, the trial court found that the “[appellees] have
shown a probable right to declaratory and injunctive relief” and “will suffer imminent and
irreparable harm, including the loss of their rights and obligations and employment.
Additionally, money damages are unavailable in ultra vires actions.” (Emphasis added)
This interlocutory appeal ensued. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(4).
6 II. STANDARD OF REVIEW
A trial court’s order granting or denying a temporary injunction is reviewed for
abuse of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). “We
limit the scope of our review to the validity of the order, without reviewing or deciding the
underlying merits, and will not disturb the order unless it is ‘so arbitrary that it exceed[s]
the bounds of reasonable discretion.’” Henry v. Cox, 520 S.W.3d 28, 33–34 (Tex. 2017)
(quoting Butnaru, 84 S.W.3d at 204) (internal footnote and citation omitted). “No abuse of
discretion exists if some evidence reasonably supports the [trial] court’s ruling.” Id. at 34.
“Under this standard, we draw all legitimate inferences from the evidence in a manner
most favorable to the trial court’s ruling.” Super Starr Int’l, LLC v. Fresh Tex Produce,
LLC, 531 S.W.3d 829, 838 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.). As the
factfinder, the trial court is the sole judge of the credibility of the witnesses and the weight
to give their testimony; it may choose to believe one witness and disbelieve another. City
of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
III. APPLICABLE LAW
A. Temporary Injunction
A temporary injunction is an extraordinary remedy which serves the purpose of
preserving the status quo of the litigation’s subject matter pending a trial on the merits.
Butnaru, 84 S.W.3d at 204. “To obtain a temporary injunction, the applicant must plead
and prove three specific elements: (1) a cause of action against the defendant; (2) a
probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in
the interim.” Id. An order granting a temporary injunction shall: (1) set forth the reasons
7 for its issuance; (2) be in specific terms; and (3) describe in reasonable detail the act or
acts sought to be restrained, without reference to the complaint or other document. TEX.
R. CIV. P. 683.
To establish a probable right to relief, a party must allege a cause of action and
present evidence tending to sustain it; the party need not prove that it will prevail at final
trial. Savering v. City of Mansfield, 505 S.W.3d 33, 39 (Tex. App.—Fort Worth 2016, pet.
denied). “An injury is irreparable if there is no adequate remedy at law; if for example, a
prevailing applicant could not be compensated adequately in damages, or if damages
cannot be measured by any certain pecuniary standard.” Benefield v. State, 266 S.W.3d
25, 30 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Butnaru, 84 S.W.3d at 204).
“[T]he remedy for a denial of due process is due process.” Univ. of Tex. Med. Sch.
at Hous. v. Than, 901 S.W.2d 926, 933 (Tex. 1995). Parties who bring claims for ultra
vires acts are entitled to prospective injunctive relief, rather than retrospective monetary
relief, measured from the date of the injunction. City of Houston v. Hous. Mun. Emps.
Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018). “Plaintiffs in ultra vires suits must ‘allege,
and ultimately prove, that the officer acted without legal authority or failed to perform a
purely ministerial act.’” Id. (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.
2009)). “‘Ministerial acts’ are those ‘where the law prescribes and defines the duties to be
performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment.’” Id. (quoting Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587
(Tex. 2015)).
8 B. Notice of Complaint
Before the head of a fire department may consider a complaint, it must be in writing
and signed by the person making the complaint. TEX. GOV’T CODE ANN., § 614.022. A
complaint against a firefighter “shall be given to the officer or employee within a
reasonable time after the complaint is filed.” Id. § 614.023(a). No disciplinary action may
be taken against an employee or officer unless a copy of the signed complaint is given to
the officer. Id. § 614.023(b). Further, an employee may not be indefinitely suspended or
terminated based on the complaint unless the complaint is investigated and there is
evidence to prove the allegation of misconduct. Id. § 614.023(c).
“These statutes provide ‘covered employees with procedural safeguards to reduce
the risk that adverse employment actions would be based on unsubstantiated
complaints.’” Colorado County v. Staff, 510 S.W.3d 435, 443 (Tex. 2017) (quoting Turner
v. Perry, 278 S.W.3d 806, 823 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)). Even
if the covered employee is terminable at will, the statute applies whenever the decision to
terminate is based on a complaint of misconduct. Id. at 446. “[T]he statutory process helps
ensure that cause-based removals of a specified nature bear a modicum of proof and that
the affected employee has notice of the basis for removal.” Id. Providing notice to the
affected employee allows the employee to address and defend against the allegations.
Id. at 447. “In sum, Chapter 614, Subchapter B does not preclude termination of
employment absent compliance with the statutory process, but when allegations of
misconduct are serious enough to warrant termination—independently or as a component
of cumulative discipline—a complaint must be filed, investigated, and substantiated.” Id.
9 The statute does not set out any requirements for the contents of a complaint or
establish standards for specificity. Id. at 454. Nor does the statute require that the person
making the complaint be the victim of the alleged misconduct. Id. at 451. The statute does
not require the employee be offered an opportunity to be heard before disciplinary action
may be taken. Id. at 454. “Unlike [§§] 614.023(a) and (c), there is neither an express nor
implied temporal limitation on presentment of a complaint in relation to the imposition of
discipline.” Id. “Under Chapter 614, Subchapter B, a disciplinary action may follow a
signed complaint, or information that has been reported may prompt an internal
investigation that generates a report sufficient to satisfy the statutory requirements.” Id.
at 455. Whether presentment of a complaint contemporaneous with the imposition of
discipline is “within a reasonable time after the complaint is filed” is fact specific. See id.
at 454 (quoting TEX. GOV’T CODE ANN. §§ 614.022–.023(a)-(b)).
C. Labor Union Protections
“All persons engaged in any kind of labor may associate and form trade unions
and other organizations to protect themselves in their personal labor in their respective
employment.” TEX. LAB. CODE ANN. § 101.001. “A person may not be denied employment
based on membership or nonmembership in a labor union.” Id. § 101.052. “The right of a
person to work may not be denied or abridged because of membership or
nonmembership in a labor union or other labor organization.” Id. § 101.301(a). This
protection extends to public employment. TEX. GOV’T CODE ANN. § 617.004.
IV. MOOTNESS
By their first issue, appellants argue appellees’ claims are moot because they have
10 been reinstated to their positions. Appellees, in part, argue that Port Houston restored the
terminated employees before they filed suit and it is thus, not a change that occurred
within the court proceeding. Appellees further argue that Port Houston could still take
disciplinary action against them and thus, their claims are not moot. In furtherance of this
point, appellees assert that because a written and signed complaint was not provided to
them in a reasonable time, Port Houston cannot cure the deficiency “[w]ithout a time-
machine,” and “additional ‘process’ cannot cure the prejudice and harm caused by
months of hiding and concealing the report.”4
A. Applicable Law
“Standing is a constitutional prerequisite to maintaining suit . . . .” Williams v. Lara,
52 S.W.3d 171, 178 (Tex. 2001). “For a plaintiff to have standing, a controversy must
exist between the parties at every stage of the legal proceedings, including the appeal.”
Id. at 184 (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). “If a case
becomes moot, the parties lose standing to maintain their claims.” Id. A court lacks
jurisdiction and must dismiss a case where the plaintiff lacks standing to bring any of his
claims. Heckman v. Williamson County, 369 S.W.3d 137, 151 (Tex. 2012). “A court can—
and if in doubt, must—raise standing on its own at any time.” Meyers v. JDC/Firethorne,
4 Appellees claim that
Port Houston have [sic] prejudiced [appellees]’ defense against these stale complaints because (1) [appellants] have since terminated Robert Jones, the key witness against [appellees]; (2) [Port Houston] has now determined that Jones was not credible regarding some allegations made to [Port Houston], as confirmed by Chief Buck’s testimony; (3) the length of time since the original report detrimentally impacts [appellees]’ ability to evaluate the allegations; (4) the process has been tainted because Port [Houston] [l]eaders in the chain of command have already made the decision upholding their termination based on the complaint; and (5) [appellees] have already suffered months of lost wages that are not recoverable for the ultra vires conduct.
11 Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445–46 (Tex. 1993)).
“Put simply, a case is moot when the court’s action on the merits cannot affect the
parties’ rights or interests.” Heckman, 369 S.W.3d at 162. If a court determines a case
has become moot, it “must vacate any order or judgment previously issued and dismiss
the case for want of jurisdiction.” Id. “[A] declaratory judgment is appropriate only if a
justiciable controversy exists as to the rights and status of the parties and the declaration
will resolve the controversy.” FLCT, Ltd. v. City of Frisco, 493 S.W.3d 238, 251 (Tex.
App.—Fort Worth 2016, pet. denied) (citing TEX. CIV. PRAC & REM. CODE ANN. § 37.008).
An exception to mootness exists where claims are “capable of repetition, yet
evading review.” Williams, 52 S.W.3d at 184; Tex. A & M Univ. Kingsville v. Yarbrough,
347 S.W.3d 289, 290 (Tex. 2011). “To invoke the exception, a plaintiff must prove that:
(1) the challenged action was too short in duration to be litigated fully before the action
ceased or expired; and (2) a reasonable expectation exists that the same complaining
party will be subjected to the same action again.” Williams, 52 S.W.3d at 184; Yarbrough,
347 S.W.3d at 290.
B. Analysis
1. Jordan and Meador
We begin by noting that appellees consist of two classes of plaintiffs: (1) the
terminated employees (Kozlowski, Hall, Stallings, and Roberts); and (2) the suspended
employees (Jordan and Meador). This distinction is important to our analysis. When
Jordan and Meador received their suspensions, they were both provided a “Disciplinary
12 Notice to Employee of Port of Houston Authority.” The notices are signed by their
supervisor and the fire chief. Jordan’s notice states: 5
An investigation conducted by an outside investigator found that there was credible corroboration to support that on more than one occasion you called Mr. Jones derogatory nicknames relating to an injury [redacted] which occurred when he was active[-]duty military.
You violated Port Houston policy which prohibits harassment, including harassment based on physical or mental disability. You engaged in prohibited behavior which includes wrongful verbal conduct.
Meador’s notice states:
An investigation conducted by an outside investigator substantiated that you were involved in the “rookie radar calibration” prank played on [another firefighter], in which photos of him were taken with a metal cookie sheet taped around [redacted] and metal objects placed in each hand while facing the fireboat radar. Photos of the hazing were circulated.
The investigation also found that there was credible corroboration to support that on more than one occasion you called Mr. Jones derogatory nicknames relating to an injury [redacted] which occurred when he was active[-]duty military.
You violated Port Houston policy which prohibits harassment, including harassment based on physical or mental disability. You engaged in prohibited behavior which includes wrongful verbal conduct. The posting and distribution of photos was also a violation of our visual conduct policy.
As the Texas Supreme Court noted in Staff, §§ 614.022 and 614.023 do not “set
forth required contents for a ‘complaint’ or establish particular standards for specificity.”
See Staff, 510 S.W.3d 454; see also TEX. GOV’T CODE ANN. §§ 614.022–.023. Further,
the written complaint need not come from “the victim of the misconduct.” See Staff, 510
S.W.3d at 453. In Staff, the court held that a “Deficiency Notice” signed by an officer’s
supervisor following an internal investigation prompted by a complaint about the officer’s
5 The redactions in the notices appear in the original record.
13 behavior towards civilians from the county attorney “serve[d] the ‘overarching statutory
purposes’” of Chapter 614. See id. at 454 (quoting Lang v. Tex. Dep’t of Pub. Safety, No.
03-12-00497-CV, 2014 WL 3562738, at *9 (Tex. App.—Austin July 18, 2014, no pet.)
(mem. op.)).
Jordan and Meador’s claims are nearly identical to that of the plaintiff’s in Staff.
See id. The disciplinary notices received by Jordan and Meador “serve[] the ‘overarching
statutory purposes’” of “(1) ameliorating the risk that disciplinary action might be based
on frivolous complaints and (2) helping to ensure an affected employee has sufficient
notice of the charges to defend against the allegations.” See id. at 447, 454. Jordan and
Meador were notified of the behavior that constituted the alleged misconduct, as well as
the policies the alleged misconduct violated. See id. at 454–55. Further, both were
provided “opportunit[ies] to marshal any evidence bearing on the matters identified” in the
disciplinary notice. See id. at 455. Finally, as here and in Staff, the employees received
copies of the notice at the time the disciplinary action was taken. See id. at 454.
Jordan and Meador argue that the disciplinary notices they received did not satisfy
Chapter 614’s requirements because they were not “signed by the person making the
complaint.” See TEX. GOV’T CODE ANN. §§ 614.022(2), 614.023. Jordan and Meador
assert their claim is distinguishable from Staff in that Staff determined the complaint
signed by a supervisor satisfied the requirements because the supervisor personally
reviewed body camera footage and witnessed Staff’s behavior. See Staff, 510 S.W.3d at
439–40. According to Jordan and Meador, only the Church report or a signed complaint
from Jones would satisfy Chapter 614’s requirement. However, as Jordan and Meador
14 acknowledge in their brief, in Staff the complaint originated from the county attorney’s
office, which prompted an internal investigation. See id. at 439. The court acknowledged
that Chapter 614 may be satisfied when an internal investigation generates a sufficient
report. See id. at 455. Appellees provide no case law standing for the proposition that
Chapter 614 requires investigative reports, such as the Church report, be provided to
employees before disciplinary actions, and we find none. See TEX. GOV’T CODE ANN.
§ 614.023. Rather, Staff requires a complaint that satisfies the overarching statutory
purposes of Chapter 614. See Staff, 510 S.W.3d at 454–55.
Therefore, as it relates to violations of Chapter 614, no live controversy exists
between Jordan and Meador and appellants. See Williams, 52 S.W.3d at 184; TEX. GOV’T
CODE ANN. § 614.023. Thus, Jordan and Meador’s claims are moot, and they lack
standing to maintain their claims. See Williams, 52 S.W.3d at 184. There is no evidence
that “a reasonable expectation exists that the same complaining party will be subjected
to the same action again” such that would allow us to review their claims despite being
moot. 6 See id.; Yarbrough, 347 S.W.3d at 290. Accordingly, we sustain appellants’ first
issue as it relates to Jordan and Meador’s claims under Texas Government Code
§§ 614.022–.023. See TEX. GOV’T CODE ANN. §§ 614.022–.023
2. Kozlowski, Hall, Stallings, and Roberts
Unlike the suspended employees, the terminated employees did not receive a
signed disciplinary complaint when their employment was terminated. Rather, they “were
verbally informed of the reasons for their terminations at the time of their terminations.”
6 Neither Jordan nor Meador testified at the temporary injunction hearing.
15 Additionally, about two weeks after their termination, they each received an email
including a broad description of the reason or reasons for their termination. For example,
Hall was notified that he “[was] found to have pressured an employee to disclose
information about an injury and made derogatory comments regarding the injury.”
Kozlowski was notified that he “[was] found to have pressured an employee to disclose
information and evidence of an injury, made derogatory comments about an employee’s
injury and veteran status, and participated in at least one hazing event.” Stallings and
Roberts were provided similar notices for their alleged misconduct. The emails included
the signature block of Walter.
Although an investigation was conducted prior to Kozlowski, Hall, Stallings, and
Roberts’s termination in accordance with § 614.023(c), they were not provided a written
and signed copy of a complaint in accordance with § 614.023(a) and (b). See TEX. GOV’T
CODE ANN. § 614.023. However, appellees were provided a signed copy of the Church
report in February 2021, and reinstated to their positions, although immediately placed
on administrative leave, in March 2021. Thus, we must consider whether reinstating the
terminated employees to provide them the complained-of notice rendered their claims
moot. See Williams, 52 S.W.3d at 184. We must conduct our inquiry “without reviewing
or deciding the underlying merits.” See Henry, 520 S.W.3d at 33–34.
Appellees argue that § 614.023’s requirements are substantive, rather than a
procedural safeguard. By extension, appellees assert that appellants cannot cure their
substantive defect because they cannot provide a signed copy of a complaint to appellees
within a reasonable time. In other words, appellees contend that because they did not
16 receive a signed complaint within a reasonable time, they can never be punished for the
alleged misconduct in the underlying Church report. Finally, appellees argue their request
was for an injunction prohibiting disciplinary action against them, rather than
reinstatement, so their claims are not moot.
In Staff, the Texas Supreme Court identified §§ 614.022–.023 as “procedural
safeguards” designed to ameliorate disciplinary actions on frivolous complaints and
ensure the affected employees have sufficient notice to defend against the complaints.
See Staff, 510 S.W.3d at 446–48. Generally, the remedy for a deprivation of due process
is due process. See Than, 901 S.W.2d at 933. Here, the process that appellees were
allegedly deprived of was being provided a signed complaint within a reasonable time
after a complaint was made and before, or contemporaneously with, any disciplinary
action taken against them. See TEX. GOV’T CODE ANN. § 614.023(b). As the court noted
in Staff, there may be a situation in which “presentment of a complaint
contemporaneously with the imposition of discipline may not be ‘within a reasonable time
after the complaint is filed.’” Staff, 510 S.W.3d at 454. Here, appellants did not present a
complaint contemporaneously with the imposition of discipline—the terminated appellees
did not receive the Church report until approximately 230 days after the discipline, 250
days after the report was prepared and signed, and over 300 days after the initial
complaint. See id. Because the question as to whether the complaint was provided within
a reasonable time is fact specific, the parties should be afforded an opportunity to present
arguments and evidence in a final hearing for the factfinder to make that determination.
See id.
17 Appellees allege that Port Houston’s failure to comply with Chapter 614 prejudiced
them in multiple ways. In particular, appellees argue that “the length of time since the
original investigation makes it more difficult to present their case,” “the process has been
tainted because” Port authorities have already upheld their termination through the
appellate process, and they “have already suffered months of lost wages that are not
recoverable for ultra vires violations.” Whether appellees have been irreparably damaged
by a lack of required process should likewise be determined at a final hearing. See id.;
Henry, 520 S.W.3d at 33–34.
Appellants argue that Than is instructive to this case. See Than, 901 S.W.2d at
933. In Than, a medical student was disciplined after he was accused of cheating on a
board exam in surgery. Id. at 928. During the disciplinary hearing, the hearing officer
requested to view the exam room in which Than sat during the exam. Id. Although the
university’s representative accompanied the hearing officer to view the exam room where
Than sat, Than was not allowed to be present with the hearing officer despite his request
to do so. Id. Based on the hearing officer’s recommendation, Than was expelled from the
university. Id. Thereafter, Than followed the appeal process and ultimately sought and
obtained a permanent injunction requiring the university to permit him to complete his
medical education. Id. at 929. The Texas Supreme Court held that the trial court’s
permanent injunction exceeded the proper remedy. Id. at 934 (striking requirement that
the university issue Than a diploma and treat him as any other student who graduated in
good standing). Instead, the court modified the permanent injunction to remove Than’s
failing grade and record of the expulsion and concluded that “whether [the university]
18 issues Than a diploma should be determined by university officials after notice and
hearing.” Id. The court cautioned other courts to “tread lightly in fashioning remedies for
due process violations” in order to avoid “unwarranted judicial interference with the
educational process.” Id.
Appellants additionally rely on Orr v. Univ. of Tex. at Austin, No. 03-14-00299-CV,
2015 WL 5666200, at *1 (Tex. App.—Austin Sept. 23, 2015, no pet.) (mem. op.), an
unpublished case. In that case, Orr, a doctoral graduate, had her degree revoked for
“scientific misconduct concerning her degree.” Id. Orr filed a suit against the university,
alleging it violated the due course of law of the Texas Constitution, seeking a temporary
and permanent injunction preventing the university from revoking her degree and violating
her constitutional rights. Id.; see TEX. CONST. art. I, § 19. The same day, “Orr and [the
university] entered into a Rule 11 agreement specifying that [the university] would restore
Orr’s degree ‘subject to further discussions regarding additional process.’” Orr, 2015 WL
5666200, at *1; see TEX. R. CIV. P. 11. The court of appeals determined Orr’s suit became
moot because “Orr’s degree is intact, and any alleged injury based on the new proceeding
remains contingent”; in other words, any further claims by Orr were not ripe. Orr, 2015
WL 5666200, at *3 (citing Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011)). The
court additionally noted that “Orr’s pleadings [did] not identify a ‘legally cognizable
interest’ in obtaining any prospective relief as to [the university’s] past investigation and
decision-making process.” Id.
Unlike Than, the present case involves a legislatively mandated process for
disciplinary actions against fire department employees following a complaint. See TEX.
19 GOV’T CODE ANN. §§ 614.022–.023; Than, 901 S.W.2d at 934 (concluding the injunctive
relief “represent[ed] unwarranted judicial interference with the educational process”).
Further, in contrast with Orr, appellees have identified a legally cognizable interest in
obtaining prospective relief as to Port Houston’s past process. See Orr, 2015 WL
5666200, at *3. Appellants argue that the trial court’s temporary injunction modifies the
at-will nature of the terminated employees’ employment, which they assert is contrary to
the ruling in Staff. See Staff, 510 S.W.3d at 446. However, such a characterization is
inaccurate—the terminated employees remain at-will employees, but appellants are
required to comply with Chapter 614 “before an employee may be permanently
encumbered by a damaging discharge record.” See id.; TEX. GOV’T CODE ANN.
§§ 614.022–.023. Accordingly, we conclude that the terminated employees’ claims under
Chapter 614 are not moot. Appellants’ first issue as it relates to the terminated employees
is overruled.
3. Violations of the Labor Code
In addition to their claims under Chapter 614, appellees seek declaratory
judgments and injunctions relating to disciplinary action for their membership with the
Union. See TEX. LAB. CODE ANN. §§ 101.052, 101.301; TEX. GOV’T CODE ANN. § 617.004.
Appellants’ argument that appellees’ claims are moot focuses solely on appellees’ claims
under Chapter 614 and does not address appellees’ claims that Port Houston’s actions
against them were based on their membership and leadership in the Union. The trial
court’s temporary injunction prohibited appellants from taking disciplinary action against
all appellees “related to their union activity, including representing union members in
20 investigations or disciplinary actions.” Because the related provisions of the labor and
government codes do not have temporal limitations, appellees’ claims are not moot. See
Heckman, 369 S.W.3d at 162.
4. Summary
We sustain appellants’ first issue as it relates to Jordan and Meador’s Chapter 614
claims, but overrule it as it relates to Kozlowski, Hall, Stallings, and Roberts. We further
conclude that appellees’ claims regarding labor union protections are not moot. See id.
V. TEMPORARY INJUNCTION
By their second issue, appellants argue that the trial court’s entry of a temporary
injunction was clear error because “[appellees] failed to satisfy the standards for
entitlement to injunctive relief.” By several sub-issues, appellants argue that (1) appellees
did not show a probable right to relief; (2) appellees did not show a probable, imminent,
and irreparable injury; (3) the trial court’s temporary injunction “[u]pends, [r]ather than
[m]aintains, the [s]tatus [q]uo;” and (4) the trial court exceeded its authority by providing
substantive relief where only procedural protections were appropriate.
A. Probable Right to Relief
In support of their first sub-issue, appellants lodge three subpoints arguing that
appellees failed to show a probable right to relief. We address them in turn.
1. Evidence of a Complaint
Appellants argue that appellees have not shown a probable right to recovery, a
necessary finding before a court may enter a temporary injunction. See Henry, 520
S.W.3d at 34. In support of their argument, appellants argue that Chapter 614 does not
21 apply to this situation because “[t]here [is] no evidence of an applicable ‘complaint’ which
[appellees] failed to receive.” Because we have already concluded the suspended
employees received the necessary notice as it relates to Chapter 614, our analysis
focuses on the terminated employees.
Appellants cite two federal cases for the proposition that Chapter 614 only applies
to third-party alleged victims, rather than internal investigations. See Gehring v. Harris
County, Civ. A. H-15-0726, 2016 WL 269620, at *11 (S.D. Tex. 2016); Jackley v. City of
Live Oak, SA-08-CA-0211-OG, 2008 WL 5352944, at *5 (W.D. Tex. 2008). However, as
appellants concede, “[t]he Staff court discussed the issue extensively, but failed to resolve
the issue one way or the other.” See Staff, 510 S.W.3d at 450, 455. Appellants further
argue that the Staff court determined that the circumstances before it “did not require the
employer to provide any ‘complaint’ to the employee.” Appellants also assert that the court
“held that the County was never obligated to provide a complaint to the employee/plaintiff
before terminating him.”
It is important to note that, as previously discussed, the Staff court held that the
complaint may be provided contemporaneously with the implication of disciplinary action,
not that the County was never obligated to provide a complaint to the employee before
terminating him. See id. at 454. Indeed, the court acknowledged that a situation may arise
where contemporaneous presentment of the complaint with the disciplinary action was
not “within a reasonable time after the complaint is filed.” See id. Additionally, the court
did not hold that the County was not required to provide a “complaint” to the employee.
See id. Rather, the court held the “requirement was satisfied by the Deficiency Notice [the
22 supervisor] signed.” Id.
The primary issues discussed in Staff were what constitutes a “complaint” and
whether it must come from “the ‘victim’ of the alleged misconduct.” Id. at 448–51. The
court held that “‘complaint’ ordinarily means an expression of dissatisfaction, including an
allegation made by one against another.” Id. at 448–49. Here, Jones made an allegation
against the appellees that they had engaged in harassment and hazing. See id. Jones’s
allegations meet the definition of complaint as applied to Chapter 614. See id.
Although two federal courts have determined that nothing in Chapter 614 indicates
it applies to internal complaints, some of our sister courts have held the opposite. See
Paske v. Fitzgerald, 499 S.W.3d 465, 475 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(“[A] ‘complaint’ may originate from either outside a law enforcement agency or from
within it.”); Treadway v. Holder, 309 S.W.3d 780, 784 (Tex. App.—Austin 2010, pet.
denied) (“[A] ‘complaint’ for purposes of Subchapter B is any allegation of misconduct that
could result in disciplinary action.”). Because this case has been transferred from the First
Court of Appeals in Houston, we are bound by its precedent. TEX. R. APP. P. 41.3.
Accordingly, applying the plain meaning of the statute, we conclude Chapter 614 applies
to any complaint against a covered employee. See Paske, 499 S.W.3d at 475.
2. Compliance with Chapter 614
Appellants then argue that if Chapter 614 does apply, they complied with its
requirements. Appellants assert that “on July 22, 2020, the [t]erminated [appellees] were
each provided a written, signed notice of the specific reasons for their terminations.”
Appellants point to the emails sent to the terminated appellees by Walter as evidence
23 they received the necessary notice. However, the emails sent by Walter only provide
general information to the terminated appellees, such as they “made derogatory
comments about an employee’s injury and veteran status” or “participated in at least one
hazing event.” The emails do not contain any specific details, such as which employee
the terminated appellees made the alleged comments about, who the comments were
made to, or when the comments were made. Nor does the notice provide specific
information related to the hazing event. See Staff, 510 S.W.3d at 454. Appellants also
argue that “[t]he [t]erminated [appellees] already knew the reasons for their terminations,
because they had been told the reasons during their termination meetings on July 7,
2020.” However, § 614.023(a), (b) require the affected employees receive a written and
signed copy of a complaint, not verbal disclosure of the reasons for adverse employment
action. See TEX. GOV’T CODE ANN. § 614.023(a), (b). Accordingly, we conclude the trial
court could have determined that the terminated appellees demonstrated a probable right
relief on their claim that appellants failed to comply with the requirements of Chapter 614.
See Butnaru, 84 S.W.3d at 204; Henry, 520 S.W.3d at 34.
3. Labor Union Protections
Finally, appellants argue that the appellees failed to show that Port Houston’s
disciplinary actions against them were based on their membership in the Union. See TEX.
LAB. CODE ANN. §§ 101.052, 101.301; TEX. GOV’T CODE ANN. § 617.004. Instead,
appellants assert that the activities appellees cite as protected 7 “occurred over the course
7 Some of the “protected acts” include advocating for a change to the shift schedule for all firefighters, increasing firefighter pay, and representing firefighters in disciplinary proceedings.
24 of roughly five years, during which they successfully maintained their employment with
Port Houston.” According to appellants, appellees were “disciplined or terminated based
on findings by a third-party investigator that they engaged in serious misconduct,
including harassment and hazing of other employees.”
When reviewing the trial court’s temporary injunction, we will not find an abuse of
discretion so long as “some evidence reasonably supports the court’s ruling.” Henry, 520
S.W.3d at 34. Appellees presented evidence that each of them was members in the
Union, with all the terminated employees serving in an officer capacity within the Union.
Additionally, according to Kozlowski, Buck left the Union prior to being appointed Chief
because “those promotions are political” and Buck “felt that upper management wouldn’t
approve” his promotion if he were in the Union. Kozlowski testified that in his role as Union
president, he routinely received pushback from Buck when advocating for changes on
behalf of Union members. Finally, Kozlowski testified that Buck approved of Jones’s offer
of a promotion to Beard if Beard made a false complaint against Stallings. According to
Kozlowski, Stallings was active in seeking changes on behalf of the Union and its
members.
As the sole judge of the weight of the evidence and credibility of the witnesses, the
trial court was free to believe Kozlowski’s testimony and disregard the findings within the
Church report. See Wilson, 168 S.W.3d at 816. As such, appellees produced “some
evidence” that appellants’ reasons for disciplinary actions were pretextual and instead
based on appellees’ membership and participation in the Union. See Henry, 520 S.W.3d
at 34.
25 B. Probable, Imminent, and Irreparable Injury
By their second sub-issue, appellants argue that appellees have not shown a
probable, imminent, and irreparable injury because “the [t]erminated [appellees] have
been promised that very notice [of which they complain] before any final decision
regarding their employment with Port Houston is made.” Appellants further argue that
appellees “did not present any evidence supporting their allegation that they will be
terminated or disciplined because of alleged union activity.” Finally, appellants argue that
appellees’ federal suit seeks monetary damages for alleged violations of First
Amendment rights of free speech and association, demonstrating that there is an
adequate remedy at law. See 42 U.S.C. § 1983.
Addressing appellants’ claim that appellees’ federal suit may include monetary
damages, which in turn provides “adequate relief,” we note that the only available remedy
for ultra vires acts is prospective injunctive relief. See Hous. Mun. Emps. Pension Sys.,
549 S.W.3d at 576; Heinrich, 284 S.W.3d at 368–69; see also Butnaru, 84 S.W.3d at 204
(“To obtain a temporary injunction, the applicant must plead and prove . . . a probable,
imminent, and irreparable injury in the interim.”). Further, a party alleging ultra vires acts
must be brought against the state actors in their official capacity, as opposed to the
governmental unit. See Heinrich, 284 S.W.3d at 373. An ultra vires suit “is, for all practical
purposes, against the state.” See id. Appellees’ § 1983 claims are against Buck and
Woodring in their individual capacity for retroactive damages, not in their official capacity
or against Port Houston. Accordingly, appellees’ suit for money damages against Buck
and Woodring individually does not provide “adequate relief” to appellees’ for violations
26 of Chapter 614 or the labor code such that would obviate the ability for appellees to obtain
temporary injunctive relief. See Hous. Mun. Emps. Pension Sys., 549 S.W.3d at 576;
Heinrich, 284 S.W.3d at 368–69, 373.
Appellants additionally argue that appellees “did not show any prospect of
actionable future harm.” However, appellants also argue that “the [t]erminated [appellees]
have been afforded a further opportunity to defend against the allegations through their
reinstatement”—in other words, Port Houston intends to reinitiate disciplinary
proceedings. This is further shown by the reinstatement letters, wherein Walter notified
the terminated appellees that “Port Houston is immediately placing you on administrative
leave while Port Houston addresses your claim of notice regarding the matters that
resulted in your prior termination.” Additionally, during the temporary injunction hearing,
Walter testified that “the information from that report is still valid for us to review,” although
he stated Port Houston would need to discuss with their legal counsel before determining
whether they would seek further action. However, Walter agreed that absent a court
order, the complaint is still open for further action. This evidence, along with the testimony
related to appellees’ Union membership was sufficient for the trial court to find that Port
Houston would initiate disciplinary action, which may be based on their Union
membership and activity. See Henry, 520 S.W.3d at 34; Super Starr Int’l, 531 S.W.3d at
838. As such, appellees produced “some evidence” of a probable, imminent, and
irreparable injury. See Henry, 520 S.W.3d at 34; Butnaru, 84 S.W.3d at 204.
C. Status Quo
By their third sub-issue, appellants argue that the trial court’s temporary injunction
27 upends, rather than maintains, the status quo and provides appellees with ultimate relief.
See Butnaru, 84 S.W.3d at 204. Appellants rely on two cases to support their position.
See Edgewood Indep. Sch. Dist. v. Paiz, 856 S.W.2d 269 (Tex. App.—San Antonio 1993,
no writ); Dall. Indep. Sch. Dist. v. Daniel, 323 S.W.2d 639 (Tex. App.—Dallas 1959, writ
ref’d n.r.e.). In Paiz, a group of students had not passed the state-wide standardized test,
which was necessary for graduation, causing the board of trustees to prohibit the students
from participating in graduation ceremonies. Paiz, 856 S.W.2d at 270. The students
sought and received a temporary injunction which required the school district to allow the
students to participate in the graduation ceremonies. Id. The court of appeals reversed
the trial court’s order for two reasons: (1) the temporary injunction was technically
defective on its face; and (2) “[t]he trial court’s order reverse[d] the status quo and, in so
doing, it provide[d] plaintiff the complete relief he seeks and deprive[d] the school district
of any right to contest the matter before the passage of time renders it moot and
[ir]remediable.” Id. at 270–71.
In Daniel, a custodian for a school district alleged his employment was terminated
based on his membership in a union and for testimony he provided in another suit. Daniel,
323 S.W.2d at 640. Daniel sought and obtained a temporary injunction, requiring the
school district to reinstate his employment pending trial. Id. The trial court made specific
findings related to Daniel’s claims, including affirmative findings supporting a final
determination of his causes of action. Id. “[T]hus the ultimate issues of [the] case were
decided against appellants in a preliminary hearing.” Id. at 643. The court of appeals
determined that “[t]he order of the court went far beyond the mere maintenance of the
28 status quo.” Id.
In both cases, the courts of appeals reversed the trial courts’ temporary injunction
because the injunction reversed the status quo rather than upheld it. See id. at 640; Paiz,
856 S.W.2d at 270. Here, the status quo is that appellees are employed by Port Houston,
which the temporary injunction maintains. Appellants argue that the temporary injunction
has the effect of removing appellees’ at-will employment status because it “expressly
precludes Port Houston from terminating these employees for their serious misconduct,
even if Port Houston strictly follows the requirements of Chapter 614 before doing so.”
We disagree with appellants’ characterization. Rather, appellees remain at-will
employees subject to termination for any reason or no reason at all, but enforces the
requirements laid out in Chapter 614, including providing appellees with a signed
complaint within in a reasonable time. See Staff, 510 S.W.3d at 446 (rejecting Colorado
County’s argument that Chapter 614’s protections as applied altered the at-will
employment relationship). Thus, the temporary injunction merely maintains the status quo
as it relates to the subject matter of this suit: appellants’ alleged violations of Chapter 614
and labor union protections and appellees’ continued employment. See Butnaru, 84
S.W.3d at 204.
Further, insofar as appellants argue the order awards appellees with ultimate relief
and “accomplishes the whole object of the suit,” we disagree. Unlike Daniel, the trial court
here did not make findings supporting the appellees’ ultimate claims—it merely found that
the appellees have shown a probable right to recovery. See Daniel, 323 S.W.2d at 640.
Additionally, in Paiz, the graduation ceremony would have been held before a final
29 hearing could take place, thus accomplishing the whole object of the suit: allowing the
plaintiffs to participate in graduation ceremonies. See Paiz, 856 S.W.2d at 270. The
situation here does not have any immediate time constraints that would cause appellees’
whole object of the suit to be accomplished. See id. Thus, we find Paiz and Daniel to be
inapposite in this regard.
D. Procedural v. Substantive Relief
Finally, appellants argue that the trial court exceeded its authority because it
awarded “substantive rather than procedural relief” to appellees. Appellants assert that
the trial court’s authority was limited to awarding “an injunction requiring compliance with
the procedural protections outlined by its terms.” Appellants again rely on Than and Orr.
See Than, 901 S.W.2d at 933; see also Orr, 2015 WL 5666200, at *3. We have already
distinguished appellees’ claims from those in Than and Orr; however, in addition to those
differences, Than dealt with a permanent injunction, whereas before us now is a
temporary injunction. See Than, 901 S.W.2d at 933. In neither case had the legislature
identified specific procedural protections before either university could act in the manner
they had. Here, in contrast, the legislature has specifically enumerated procedural
protections for firefighters when a complaint is made against them. See TEX. GOV’T CODE
ANN. § 614.022–.023. Thus, because the temporary injunction maintains the status quo
until trial on the merits can be accomplished, we disagree that the order provides
appellees with “substantive relief” not otherwise available to them.
E. Summary
Having considered and rejected each of appellants’ sub-issues to their second
30 issue, we overrule appellants’ second issue.
VI. CONCLUSION
We reverse the trial court’s temporary injunction as to appellees Jordan and
Meador’s request for an injunction against disciplinary action for their alleged misconduct,
dissolve it, and render a denial of a restriction against disciplinary actions related to the
alleged misconduct as it relates to violations of Chapter 614. We affirm the remainder of
the trial court’s judgment. See Super Starr Int’l, 531 S.W.3d at 852.
CLARISSA SILVA Justice
Delivered and filed on the 26th day of May, 2022.