City of Houston v. Steven M. Dunbar

Motion for Rehearing Denied and Dissenting Opinion filed November 7, 2023.

In The

Fourteenth Court of Appeals

NO. 14-21-00570-CV

CITY OF HOUSTON, Appellant

V.
STEVEN M. DUNBAR, Appellee

On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2020-31030

DISSENTING OPINION ON DENIAL OF REHEARING

Because this case involves the correct application of the substantial evidence
standard of review also known as the “little or no evidence” standard1, I would grant
rehearing. The evidence shows the communications between Dunbar and Galvan are

1
“For this reason, a better name for the substantial evidence rule might be the little or no
evidence rule.” 15 Tex. Tech. Admin. L.J. 303, 304 (2013-2014), Time for a Change: An Analysis
of the Substantial Evidence Rule in the Context of Contested Licensee Hearings and the Case for
Amending Tex. Gov’t Code Sec. 2001.174, De Leon, Benjamin S., Ponce, Athena, Walker, Chelsea
A.
numerous and unchallenged. Dunbar was charged with “failure to report.” The trial
court found that there was no substantial evidence to support the finding that Dunbar
failed to report. Because the administrative findings, inferences, conclusions, or
decisions are not reasonably supported by substantial evidence considering the
reliable and probative evidence in the record as a whole; or is arbitrary or capricious
or characterized by abuse of discretion or clearly unwarranted exercise of discretion,
I would affirm the trial court below. Because the panel has rejected the following
analysis, I dissent to the denial of rehearing.

I. Legal Principles

Government Code section 2001.174 provides for judicial review and further
defines the “substantial evidence” standard. See Tex. Gov’t Code § 2001.174. While
not precedent in Houston Fire Department cases, the legislative language is
persuasive and should be adopted or followed. “When analyzing a specific
provision, we ‘consider the context and framework of the entire statute and meld its
words into a cohesive reflection of legislative intent.’” Bailey v. Smith, 581 S.W.3d
374, 389 (Tex. App.—Austin 2019, pet. denied) (quoting Cadena Comercial USA
Corp. v. Texas Alcoholic Beverage Comm’n, 518 S.W.3d 318, 326 (Tex. 2017)).
“Further, we construe statutory language against the backdrop of common law,
assuming the Legislature is familiar with common-law traditions and principles.”
Marino v. Lenoir, 526 S.W.3d 403, 409 (Tex. 2017). We also may consider ‘former
statutory provisions, including laws on the same or similar subjects’ and the
‘consequences of a particular construction.’ Bailey, 581 S.W.3d at 389 (quoting Tex.
Gov’t Code § 311.023(4),(5)).

Government Code section 2001.174 mandates that a court:

shall reverse or remand the case for further proceedings if substantial
rights of the appellant have been prejudiced because the administrative

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findings, inferences, conclusions, or decisions are:
*****
(E) not reasonably supported by substantial evidence considering the
reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion. (emphasis added)
Tex. Gov’t Code § 2001.174(2)(E),(F).

II. The Charge

HFD rules and regulations provide officers “must report.” The term “report”
as used in this context is a verb, which means in the transitive, “to give an account
of: RELATE” or otherwise communicate, and in the intransitive, “to give an
account: TELL” Merriam-Webster.com, 2011. https://www.merriam-
webster.com/dictionary/report (last visited October 24, 2023).

III. The Issues

The evidence of the Dunbar-Galvan communication was both affirmed by
Galvan and unchallenged. The only remaining question was if the communication
constituted a report and if Galvan was an appropriate person to receive these
communications.

A. Galvan was the proper person to receive the report

Galvan testified he was a proper person to receive reports of, “public event

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issues.”2

As regards the Galvan-Dunbar communications, Galvan, the second-highest
ranking member of HFD, was talking with Dunbar, a subordinate, about violations
of HFD rules and regulations by other members of the HFD. As such, Galvan
became aware and therefore had the same duty to report under the same rule with
which Dunbar was charged with violating. Yet Galvan never communicated
anything to anyone else. This is additional evidence Galvan was in fact the person
to receive such a report. Other than a reference to Galvan not being in Dunbar’s
direct chain of command, there was no direct evidence: (1) that such an incident
report can only be made to a direct report, (2) who Dunbar’s direct report was, (3)
that Dunbar did not report this incident to him/her, or for that matter, (4) by what
specific method or means, if any, the report must be made.

B. Did Dunbar Report?

The definition of report is to “relate or communicate the operative facts.” The
evidence shows the operative facts were communicated. Galvan related being
surprised to learn of the event from Dunbar’s communications, but no evidence
indicated any such surprise or lack of awareness of any other facts or issues
following the Dunbar communications. Neither Galvan, nor the HFD investigative
report, show any evidence of new facts or new information that was not already

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Galvan testified:

Q: (By DUNBAR) Okay, So, as the PIO, you are basically over these public affairs
events; is that correct?
A: (By GALVAN): That is correct.
Q: (By DUNBAR): So if there was an issue with a public event, who would an
individual come to?
A: (By GALVAN): To me.

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reported to Galvan by Dunbar.

Accepting that all operative facts were communicated by Dunbar to Galvan,
the charge against Dunbar should fail solely on the distinction between failure to
report and failure to properly report.

However, if characteristics relating to formality of the report were at issue,
there would also be need for evidence of education, training, standard operating
procedures, or practice pertaining to the appropriateness or quality of reporting
requirements. This record is completely absent of any such evidence. In reviewing
an “insufficient-evidence” point challenging the factual sufficiency of the evidence
to support a finding that favors the party who had the burden of proof on that finding,
the reviewing court may set aside the finding only if a review of all the evidence,
both for and against the finding, demonstrates that the finding is clearly wrong and
manifestly unjust. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Cason v.
Taylor, 51 S.W.3d 397, 404 (Tex. App.—Waco 2001, no pet.). Because no evidence
of formal, or informal, requirements was presented, any commission ruling based
upon the manor, means or formality of the report is unsupported by any record
evidence.

Nevertheless, Chief Galvan testified he did not “consider” Dunbar’s
communications as a “report” because they were “just talking as friends.” But his
subjective characterization is both irrelevant and unsupported by any evidence or
standard.

Galvan admitted he had numerous phone conversations, voice, text, and video
messages from Dunbar. Dunbar sent Galvan a social media video post. He told
Galvan the video was on social media and would hit the news, and that all [heck]
would break loose, yet Galvan posits this was not a “report” because he and Dunbar
were “just talking as friends.”
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This was not two friends swapping “fish stories.” The matter was of such
seriousness that when the video (as Dunbar reported and predicted) did become
evening news, Dunbar, along with all other HFD personnel involved, received 48-
hour notification letters of investigation. This letter formally notified all involved
that the incident which occurred was serious and that they were referred to the HFD
Professional Standards Office. It further ordered them to immediately cease any
communications with others related to the incident.

I conclude the evidence established the communication between Dunbar and
Galvan, that it was a matter of grave seriousness, relating to a “public event.” The
communications related to HFD rules and regulations, violation of those rules and
regulations by individual HFD personnel (all of whom were subsequently
reprimanded), which occurred at a 9/11 HFD sponsored “public event,” held at an
HFD fire station, hosted by HFD employees, attended by Houston Rockets Players,
Houston Rockets photographers, videographers and media relations personnel, and
by local Houston television reporters and crews, along with four HFD assistant
chiefs in attendance. One of those in attendance was Chief Galvan, the designated
HFD Media and Public Information Officer (PIO), second in command only to Fire
Chief Peña.

As a matter of law, any conclusion these serious communications could be
characterized as only “just between friends” is not reasonably supported by
substantial evidence considering the reliable and probative evidence in the record as
a whole. See Tex. Gov’t Code § 2001.174(2)(E)).

Even arguendo, if the statement were “between friends,” that would not
diminish the quality or factual communication of the operative facts by Dunbar to
Chief Galvan constituting a “report.”

Moreover, the City presented no evidence to establish any evidential
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foundation or basis for either the fact of such friendship, (When asked, Galvan
couldn’t even recall the last time he and Dunbar spoke socially, rather Galvan
referred to a business communication because Galvan had lost and needed Dunbar’s
phone number) or the basis upon which to distinguish the communication as
“friendship” as compared to any other characterization. It was HFD business that
created the Dunbar-Galvan relationship (friends or not) and it was HFD business that
was being discussed; specifically HFD rules and regulations, HFD personnel and
their violations of the HFD rules and how this will likely become a public relations
problem for the HFD with the HFD Public Information Officer. Under these
circumstances, without any other evidence, the commission was without a basis for
a “friendship” characterization, or that the report failed because they were
purportedly friends. I conclude any such conclusion is without evidence and violates
Government Code section 2001.174(2)(F) as arbitrary or capricious or characterized
by abuse of discretion or clearly unwarranted exercise of discretion. See Tex. Gov’t
Code § 2001.174(2)(F).

The majority opinion on original submission criticized my prior dissent for
“irrelevant military references.”3 While not relevant to a substantial evidence review,
the language of the HFD code tracks directly from the miliary code of conduct and
the reference is relevant for three important factors in interpreting the rule. First, the
term “report” as used in context is a verb, an action to be taken. Second, particularly

3
See City of Houston v. Dunbar, No. 14-21-00570-CV, 2023 WL 3596260, at *8 (Tex. App.—
Houston [14th Dist.] May 23, 2023, no pet.) (mem. op.) (Zimmerer, J., dissenting) (“The record at both
the commission and at the trial court is completely lacking any definition of what constitutes a
“report” or any standard operating procedures or training, education, custom or practice which
would establish a basis for defining when or how an HFD report must be made.”). As a comparison,
see U.S. Marine Corps, Order 3504.2A https://www.marines.mil/Portals/1/MCO%203504.2A.pdf
(last visited October 24, 2023).

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where urgency is required, a “report” is often initiated by telephone call, fax, text
message or voice message. Last, that reporting is not always required through the
chain of command and may depend upon circumstances. Here, Galvan testified he
was the person to whom a report should be made. Dunbar followed, Rules and
Regulations, section 6.06 when he fully and completely communicated all operative
facts to Galvan. By doing so, Dunbar reported, in advance, an impending public
relations disaster when he communicated the operative facts to Galvan, the PIO. In
any other organization, Dunbar’s actions should have earned him a commendation.

Because the substantial evidence clearly established Dunbar initiated
telephone calls, voice-, video-, and text-messages communicating the operative facts
to an appropriate superior officer the same day as the event, he initiated a “report”
as contemplated in HFD Reference No. I-01, Rules and Regulations, section 6.06.

Because that is what the trial court found, I would grant rehearing and affirm.
Because the panel fails to do so, I dissent to the panel’s decision to deny rehearing.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Zimmerer, Spain, and Poissant (Zimmerer, J. dissenting to
denial of rehearing).

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