Bobby Sewell v. City of Odessa, DC Oris, Jesse Duarte, Daryl Smith, Leslie Goodson, Joe Barrera and Bill Carpenter ( 2021 )

Opinion filed April 30, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00121-CV
__________
BOBBY SEWELL, Appellant
V.
CITY OF ODESSA, DC ORIS, JESSE DUARTE, DARYL SMITH,
LESLIE GOODSON, JOE BARRERA, AND BILL CARPENTER,
Appellees
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-16-10-0948-CV
MEMORANDUM OPINION
Appellant, Bobby Sewell, filed suit against the City of Odessa and six
individuals employed by the City. Appellant was employed by the City in its animal
control division. DC Oris, Jesse Duarte, Daryl Smith, and Leslie Goodson were
police officers. Joe Barrera and Bill Carpenter were animal control officers. The
trial court ultimately entered a final judgment that Appellant take nothing on his
claims, and Appellant filed this appeal. Appellant challenges the trial court’s
judgment in nine issues. We affirm.
Background Facts
In his live pleading, Appellant alleged in his statement of facts that he was
passed over for promotions in the animal control division. He also asserted that he
previously had to serve a three-day suspension based upon Smith’s actions.
Appellant apparently also sought a job with the police department, but he alleged
that Oris and others conspired with Appellant’s ex-girlfriend to keep him from being
admitted into the police academy. Appellant appears to have alleged these pre-
discharge events in support of his claim for intentional infliction of emotional
distress.
Appellant’s statement of facts concluded with the matter that led to his
resignation from the animal control division. He alleged that Goodson investigated
him about his purchase of a house in 2015. Appellant alleged that Goodson violated
his constitutional rights by not giving him Miranda rights prior to interviewing him
about the purchase of the house. Appellant initially was suspended with pay after
the interview with Goodson, and then later Appellant was arrested and indicted for
the offense of forgery. Appellant alleged that Duarte persuaded him to resign after
Appellant was released from jail.
Appellant pleaded seven causes of action that he referred to as “counts”
against Appellees. In Count One, Appellant asserted a claim under 42 U.S.C. § 1983against Oris, Smith, Goodson, and Duarte for “constructive discharge.” He asserted
that they constructively terminated him by forcing him to resign. In Count Two,
Appellant asserted another Section 1983 claim against Oris, Smith, Goodson, and
Duarte for “violations of constitutional rights.” He alleged that all four of these
individuals violated his due process rights. Appellant also alleged that Goodson
violated his 5th Amendment rights against self-incrimination.
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In Count Three, Appellant asserted a claim against all Appellees for
intentional infliction of emotional distress. In Count Four, Appellant asserted a
claim against the City for negligent hiring, training, supervision, and retention with
respect to Oris, Smith, Goodson, and Duarte. In Count Five, Appellant alleged a
claim of “respondeat superior” against the City with respect to the actions of Oris,
Smith, Goodson, and Duarte. In Count Six, Appellant alleged a claim for slander
against Barrera and Carpenter. Finally, in Count Seven, Appellant sought a
declaratory judgment against all defendants seeking a declaration that their actions
violated Appellant’s rights.1
Appellees filed a motion for summary judgment that included grounds for a
traditional summary judgment, a no-evidence motion for summary judgment, and a
plea to the jurisdiction. Appellant filed a response to the motion for summary
judgment that included objections to Appellees’ summary judgment evidence.
Appellant filed his own affidavit as his only item of summary judgment evidence.
Appellees filed a motion to strike Appellant’s affidavit.
In addition to filing a motion for summary judgment, the City also filed a
motion to dismiss the individual claims against the city employees under
Section 101.106(e) of the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.106(e) (West 2019). Appellees referenced their pending motion to
dismiss in their motion for summary judgment. The trial court entered an order
granting the City’s motion to dismiss the claims against the city employees.
However, Appellant does not challenge the trial court’s order granting the motion to
dismiss the claims against the individual defendants. On the same day that the trial
court entered the order of dismissal, it also entered orders granting Appellees’
1
Appellant does not challenge the trial court’s determination that he did not have a valid claim for
declaratory judgment.
3
motion to strike Appellant’s affidavit and Appellees’ motion for summary judgment.
The trial court also entered a final judgment in favor of Appellees.
Analysis
We review the trial court’s grant of summary judgment de novo. Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). However, a trial court’s decision
to exclude or admit summary judgment evidence is reviewed for an abuse of
discretion. Id. (citing Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex.
2017)). In his first and second issues, Appellant challenges the trial court’s rulings
on objections to summary judgment evidence. Accordingly, we must determine if
the trial court abused its discretion it its rulings on the summary judgment evidence.
See id.; Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016)
(A trial court’s evidentiary rulings are reviewed for abuse of discretion.). An abuse
of discretion exists only when the court’s decision is made without reference to any
guiding rules and principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132
(Tex. 2012). “An appellate court must uphold the trial court’s evidentiary ruling if
there is any legitimate basis for the ruling.” Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998).
When the trial court’s order does not specify the grounds for its summary
judgment, we will affirm it if any of the theories are meritorious. Knott, 128 S.W.3d
at 216. Generally, if a party moves for summary judgment on both traditional and
no-evidence grounds, we first consider the no-evidence motion. Lightning Oil Co. v.
Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).
After an adequate time for discovery, a party may move for summary
judgment on the ground that there is no evidence of one or more essential elements
of a claim or defense on which an adverse party would have the burden of proof at
trial. TEX. R. CIV. P. 166a(i). We review a no-evidence motion for summary
4
judgment under the same legal sufficiency standard as a directed verdict.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Under this
standard, the nonmovant has the burden to produce more than a scintilla of evidence
to support each challenged element of its claims. Id. Evidence is less than a scintilla
if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
A party moving for traditional summary judgment bears the burden of proving
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508
S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a
defendant must conclusively negate at least one essential element of the cause of
action being asserted or conclusively establish each element of an affirmative
defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Evidence is conclusive only if reasonable people could not differ in their
conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the
movant initially establishes a right to summary judgment on the issues expressly
presented in the motion, then the burden shifts to the nonmovant to present to the
trial court any issues or evidence that would preclude summary judgment. See City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). In
reviewing both traditional and no-evidence summary judgments, we consider the
evidence in the light most favorable to the nonmovant, indulging every reasonable
inference in favor of the nonmovant and resolving any doubts against the movant.
Merriman, 407 S.W.3d at 248; City of Keller, 168 S.W.3d at 824.
Appellant’s first issue concerns his objections to Appellees’ summary
judgment evidence. The rules of error preservation applicable during trial also apply
in summary judgment proceedings. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161,
5
164 (Tex. 2018) (per curiam) (citing Mansions in the Forest, L.P. v. Montgomery
Cty., 365 S.W.3d 314, 317–18 (Tex. 2012) (per curiam)). When a summary
judgment affidavit suffers from a defect in form, a party must object to the formal
defect and secure a ruling from the trial court to preserve error. Id. at 166; see TEX.
R. APP. P. 33.1; TEX. R. CIV. P. 166a(f). With one exception, Appellant objected to
Appellees’ summary judgment affidavits on the ground that they contained hearsay.
An objection that an affidavit contains hearsay is an objection to a defect in the form
of the affidavit. S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—
Dallas 2011, no pet.). Appellant’s hearsay objections were not preserved for our
review because the record does not reflect that the trial court ruled on the objections.
Appellant also objected that Goodson’s affidavit was conclusory. Objections
that statements in an affidavit are conclusory assert defects of substance, which may
be raised for the first time on appeal. Brown v. Brown, 145 S.W.3d 745, 751 (Tex.
App.—Dallas 2004, pet. denied). A statement is conclusory if it does not provide
the underlying facts to support the conclusion. Id. Goodson was the detective that
interviewed Appellant about his actions in regard to the purchase of the house. This
interview was the event that led to Appellant’s arrest and indictment for forgery.
Goodson’s summary judgment affidavit accompanied a recording of the interview.
She stated in the affidavit that she had reviewed the electronic file of the recorded
interview and that it “fairly and accurately depicts said interview.” Given the nature
of her affidavit as a means for the admission of the recording by one of its
participants, we disagree with Appellant’s contention that her affidavit was
conclusory. We overrule Appellant’s first issue.
Appellant asserts in his second issue that the trial court erred by granting
Appellees’ motion to strike Appellant’s summary judgment affidavit. Appellees
objected to Appellant’s affidavit on the following grounds: (1) that it did not
establish Appellant had personal knowledge of the matters set out in the affidavit
6
and that Appellant based statements in three paragraphs in the affidavit upon
“information and belief”; (2) that portions of the affidavit were based on
inadmissible hearsay; (3) that Appellant’s affidavit contained unsupported legal
conclusions; and (4) that Appellant’s affidavit was conclusory.
Summary judgment affidavits must be made on the affiant’s personal
knowledge. TEX. R. CIV. P. 166a(f); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex.
2008). An affiant’s mere belief about the facts is legally insufficient. Kerlin, 274
S.W.3d at 668 (citing Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)).
Appellant asserts that he should be excused from these requirements because
discovery was ongoing in the case. We disagree. In this regard, the case had been
on file for over two years at the time that Appellees filed their motion for summary
judgment. Moreover, the trial court granted an extension of thirty days for Appellant
to conduct additional discovery in order to respond to the motion for summary
judgment.
Appellant made the following averments in his affidavit upon “information
and belief”: (1) that Oris conspired with Appellant’s ex-girlfriend to deny his
admission to the police academy; (2) that information was removed from his file;
and (3) that others who voluntarily resigned were given two weeks rather than being
forced to immediately resign. The trial court did not abuse its discretion by striking
these provisions from the affidavit because they were expressly not based on
Appellant’s personal knowledge. See id. (holding that an affidavit based on “the
best of my personal knowledge and belief” was insufficient).
Appellees also asserted that other averments should be struck from
Appellant’s affidavit because they were not based on his personal knowledge. These
statements included the following matters: (1) Duarte told Oris not to give Appellant
two weeks; (2) the reason why Appellant was not promoted; (3) Appellant was
denied admission to the police academy because of his handwriting; and
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(4) Appellant was written up for insubordination for not answering questions.
Appellees asserted that Appellant did not explain the basis of his personal knowledge
for these matters. We agree. An affidavit is insufficient if it does not show a basis
for the witness’s personal knowledge. See Pipkin v. Kroger Tex., L.P., 383 S.W.3d
655, 669 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). These matters were
decisions made by others, and Appellant has not shown his basis for knowledge
about them. Accordingly, the trial court did not abuse its discretion by striking these
portions of Appellant’s affidavit.
Appellees next asserted that Appellant’s affidavit contained inadmissible
hearsay. They challenged the following statement in the affidavit: “Maria Ruiz, the
owner of Pancho Patron Restaurant, notified me that BARRERA (my ex-boss) and
CARPENTER came to the restaurant in uniform, and they talked to her about me,
slandering my character by insinuating that ‘I involved [sic] in illegal dealings and
that is how I pay for my house and vehicles.’” Evidence offered in support of or in
opposition to a summary judgment motion must be in admissible form to constitute
competent summary judgment evidence. Greeheyco, Inc. v. Brown, 565 S.W.3d
309, 316 (Tex. App.—Eastland 2018, no pet.); see TEX. R. CIV. P. 166a(f). A
summary judgment affidavit containing hearsay is objectionable on that basis. See
Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 796 (Tex. App.—
Dallas 2013, no pet.); see also TEX. R. EVID. 801(d) (defining hearsay). Appellant’s
averment as to what Ruiz told him is inadmissible hearsay. Accordingly, the trial
court did not abuse its discretion by striking this paragraph from Appellant’s
affidavit.
Appellees also asserted that Appellant’s affidavit concluded with three
paragraphs that were conclusory in nature. These statements were as follows:
(1) “While acting under color of state law the Defendants deprived me of due process
in violation of 42 U.S.C. § 1983. Their acts were done in accordance with a policy,
8
practice or custom of the state, at its police department of the City of Odessa.” (2) “I
was constructively discharged from my position from the Animal Control Division
of the City of Odessa.” (3) Appellant suffered damages “[d]ue to the Defendants’
acts.” Conclusory testimony or affidavits are not competent summary judgment
evidence and are insufficient to create a question of fact to defeat summary
judgment. Cammack the Cook, L.L.C. v. Eastburn, 296 S.W.3d 884, 894–95 (Tex.
App.—Texarkana 2009, pet. denied). We agree with Appellees’ contention that
these statements in the affidavit are conclusory.
Finally, Appellant complains that the trial court erred by striking his entire
affidavit based on the portions of it that were improper. We agree with Appellant’s
proposition. See Spradlin v. State, 100 S.W.3d 372, 381 (Tex. App.—Houston [1st
Dist.] 2002, no pet.). Accordingly, we overrule Appellant’s second issue in part.
We uphold the trial court’s rulings to the specific portions of the affidavit that we
have addressed. However, we sustain Appellant’s second issue with respect to the
remaining portions of his affidavit.
In his third issue, Appellant contends that the trial court erred by granting
Appellees’ no-evidence motion for summary judgment because an inadequate time
for discovery had elapsed. As noted previously, a no-evidence motion for summary
judgment is only appropriate after an adequate time for discovery has transpired.
TEX. R. CIV. P. 166a(i). The rule does not require that discovery must have been
completed, only that there was “adequate time.” Specialty Retailers, Inc. v. Fuqua,
29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). In
granting a no-evidence motion for summary judgment, a trial court implicitly holds
that an adequate time for discovery passed before its consideration of the motion.
Chamie v. Mem’l Hermann Health Sys., 561 S.W.3d 253, 256–57 (Tex. App.—
Houston [14th Dist.] 2018, no pet.).
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We review a trial court’s determination that there has been an adequate time
for discovery on a case-by-case basis, under an abuse-of-discretion standard. Id. at
257. In considering whether the trial court permitted an adequate time for discovery,
we consider the following nonexclusive factors: (1) the nature of the case, (2) the
nature of the evidence necessary to controvert the no-evidence motion, (3) the length
of time the case was active, (4) the amount of time the no-evidence motion was on
file, (5) whether the movant had requested stricter deadlines for discovery, (6) the
amount of discovery that already had taken place, and (7) whether the discovery
deadlines in place were specific or vague. McInnis v. Mallia, 261 S.W.3d 197, 201
(Tex. App.—Houston [14th Dist.] 2008, no pet.). Appellant contends that an
inadequate time for discovery had elapsed because the discovery deadline set out in
the trial court’s Discovery Control Plan had not been reached. We disagree.
When Appellant filed the underlying proceeding on October 19, 2016, he
indicated his intention that discovery should be conducted in accordance with a
Level 3 discovery control plan. See TEX. R. CIV. P. 190.4. Rule 190.1 requires the
plaintiff to advise the court and the other parties of his intentions with respect to
discovery. See TEX. R. CIV. P. 190.1. “The initial pleading required by Rule 190.1
is merely to notify the court and other parties of the plaintiff’s intention; it does not
determine the applicable discovery level or bind the court or other parties.” TEX. R.
CIV. P. 190.6 cmt. 1. “[A] plaintiff’s statement in the initial paragraph of the petition
that the case is to be governed by Level 3 does not make Level 3 applicable, as a
case can be in Level 3 only by court order.” Id. When a trial court does not sign an
order adopting a Level 3 discovery control plan, the default discovery limitations of
Level 1 (which does not apply here) or Level 2 apply. See Allen v. United of Omaha
Life Ins. Co., 236 S.W.3d 315, 326 (Tex. App.—Fort Worth 2007, pet. denied).
Under Rule 190.3 as it existed at all times relevant to this case, the discovery period
under Level 2 ended nine months after the earlier of the date of the first oral
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deposition or the due date of the first response to written discovery. See former
TEX. R. CIV. P. 190.3(b)(1)(B)(ii) (amended effective Jan. 1, 2021, to reflect that
Level 2 discovery ends nine months after the first initial disclosures are due).
The parties did not present a discovery control plan for entry until
December 3, 2018. This date was over two years after Appellant filed suit, and it
was after Appellees filed their motion for summary judgment. Under former Rule
190.3, the nine-month discovery period had already ended because the first
responses to written discovery were served on December 22, 2016. Accordingly,
we disagree with Appellant’s contention that the discovery period had not ended
when the trial court entered the summary judgment. Moreover, the trial court
granted Appellant’s request for more time to conduct additional discovery before
ruling on Appellees’ motion for summary judgment. Given the fact that the case had
been on file for two years before Appellees filed their motion for summary judgment,
the trial court did not abuse its discretion by determining that an adequate time for
discovery had elapsed. We overrule Appellant’s third issue.
In his fourth and fifth issues, Appellant contends that the trial court erred in
granting Appellees’ motion for summary judgment on his Section 1983 claims. He
asserts in his fourth issue that he demonstrated a material question of fact on his
claim for constructive discharge by asserting that Oris, Smith, Goodson, and Duarte
forced him to resign. Appellant asserts in his fifth issue that, even though he was an
at-will employee, he had a viable Sabine Pilot 2 claim. Appellant also asserts in his
fifth issue that Goodson violated his constitutional right against self-incrimination
by failing to give him his Miranda 3 warnings.
2
Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
11
For the purpose of our analysis, we will assume that Appellant has asserted a
claim under Section 1983 for wrongful discharge. 42 U.S.C. Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . , subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law . . . .
Section 1983 does not grant substantive rights but, rather, provides a vehicle for a
plaintiff to vindicate rights protected by the United States Constitution and other
federal laws. Albright v. Oliver, 510 U.S. 266, 271 (1994). Municipalities are
“persons” within the meaning of Section 1983. Monell v. Dep’t of Social Servs., 436
U.S. 658, 690 (1978). Neither the City nor any of its employees have immunity from
a Section 1983 claim. See Howlett v. Rose, 496 U.S. 356, 375 (1990); Dallas Indep.
Sch. Dist. v. Finlan, 27 S.W.3d 220, 241–42 (Tex. App.—Dallas 2000, pet. denied).
To pursue a Section 1983 claim, the plaintiff must plead a cause of action in which
the deprivation of a federal right is implicated. City of Fort Worth v. Robles, 51
S.W.3d 436, 444 (Tex. App.—Fort Worth 2001, pet. denied), disapproved of on
other grounds by City of Grapevine v. Sipes, 195 S.W.3d 689, 695 & n.5 (Tex.
2006)).
Appellant generally asserts that Appellees violated his right not to be deprived
of property without due process of law. In analyzing a claim of deprivation of
procedural due process, we apply a two-part test: we must determine (1) whether the
plaintiff had a liberty or property interest entitled to procedural due process and (2) if
so, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982);
Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). In a substantive
due process analysis, we determine (1) whether the plaintiff had a protected property
interest and (2) whether the government deprived him of that interest capriciously
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and arbitrarily. City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex. App.—Amarillo
1996, writ denied); see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (substantive
due process bars arbitrary, wrongful government actions); Simi Inv. Co. v. Harris
Cty., Tex., 236 F.3d 240, 249 (5th Cir. 2000) (substantive due process protects
against deprivation of constitutionally protected interests through government’s
arbitrary abuse of power). Thus, the first question under both procedural and
substantive due process is whether Appellant had a constitutionally protected
property interest in his position with the City’s animal control division.
We look to Texas law to determine whether Appellant had a protected
property interest. See Nunez v. Simms, 341 F.3d 385, 387–88 (5th Cir. 2003). The
summary judgment evidence conclusively established that Appellant did not have
protected property interest in his position. Appellees filed summary judgment
evidence indicating that Appellant was an at-will employee. Appellant does not
dispute that he was an at-will employee. “[A]n employee who is terminable at will
generally has no constitutionally-protected property interest.” Stem v. Gomez, 813
F.3d 205, 210 (5th Cir. 2016). An employer “generally can terminate an at-will
employee for any reason or no reason at all.” See Mission Petroleum Carriers,
Inc. v. Solomon, 106 S.W.3d 705, 715 (Tex. 2003); Montgomery Cty. Hosp. Dist. v.
Brown, 965 S.W.2d 501, 502 (Tex. 1998) (“[A]bsent a specific agreement to the
contrary, employment may be terminated by the employer or the employee at will,
for good cause, bad cause, or no cause at all.”). A unilateral expectation of continued
employment is not enough to create a constitutionally protected property interest.
See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
Appellant also asserts that he had a protected liberty right to his reputation
that Appellees adversely affected without due process. To prevail on a claim of this
type, Appellant must show: “(1) that [he] was discharged; (2) that stigmatizing
charges were made against [him] in connection with the discharge; (3) that the
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charges were false; (4) that [he] was not provided notice or an opportunity to be
heard prior to [his] discharge; (5) that the charges were made public; (6) that [he]
requested a hearing to clear [his] name; and (7) that the [City] refused [his] request
for a hearing.” Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000).
Appellant has failed to plead a claim of this type because he did not allege that
Appellees denied him of a hearing to clear his name.
Appellant’s claim that Goodson failed to read him his Miranda warnings is
not cognizable as a Section 1983 action. “The reading of Miranda warnings is a
procedural safeguard rather than a right arising out of the fifth amendment itself.”
Warren v. City of Lincoln, Neb., 864 F.2d 1436, 1442 (8th Cir. 1989). Therefore
“the remedy for a Miranda violation is the exclusion from evidence of any compelled
self-incrimination, not a section 1983 action.” Id. (citing Bennett v. Passic, 545 F.2d
1260, 1263 (10th Cir.1976), which provides: “The Constitution and laws of the
United States do not guarantee [plaintiff] the right to Miranda warnings. They only
guarantee him the right to be free from self-incrimination. . . . No rational argument
can be made in support of the notion that the failure to give Miranda warnings
subjects a police officer to liability under the Civil Rights Act.”).
Finally, we disagree with Appellant that he stated a viable Section 1983 claim
under Sabine Pilot. In Sabine Pilot, the Texas Supreme Court carved out an
exception to the general at-will employment doctrine in Texas to protect employees
whose employers ask them to act illegally and whose refusal to do so results in their
termination.4 687 S.W.2d at 735. Appellant has not alleged that he was terminated
4
In Sabine Pilot, the court also discussed some of the statutory exceptions to the at-will employment
doctrine. 687 S.W.2d at 735. Those statutory exceptions relate to termination decisions based upon race,
color, handicaps, religion, filing a workers’ compensation claim, union membership or nonmembership,
active duty in State military forces, jury service, and refusal to perform an illegal act. Id. A termination
for any of those reasons would be for an unlawful reason. Appellant has not alleged that he was discharged
for any of these reasons.
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because he refused to do an illegal act. Moreover, stating a cause of action under
Sabine Pilot would not state a claim for a federal law violation.
The trial court did not err in granting Appellees’ motion for summary
judgment on Appellant’s Section 1983 claims. We overrule Appellant’s fourth and
fifth issues.
Appellant’s remaining claims are subject to the Texas Tort Claims Act. See
CIV. PRAC. & REM. ch. 101. In this regard, the Tort Claims Act is the only avenue
for a common law recovery against the government. Franka v. Velasquez, 332
S.W.3d 367, 378 (Tex. 2011). Accordingly, all tort theories alleged against a
governmental unit and its employee are considered to be brought under the Tort
Claims Act even if the Act does not confer a waiver of immunity for a particular
claim. Id.The order dismissing the claims against the individual defendants is relevant
to Appellant’s claims that were not brought under Section 1983. “When a trial court
renders a final judgment, the court’s interlocutory orders merge into the judgment
and may be challenged by appealing that judgment.” Bonsmara Nat. Beef Co. v.
Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020). However,
Appellant does not challenge the order dismissing the individual defendants. As a
result of the unchallenged order dismissing the individual defendants, Appellant’s
remaining claims against the individual defendants no longer exist.5
5
Section 101.106(e) provides that “[i]f a suit is filed under this chapter against both a governmental
unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by
the governmental unit.” CIV. PRAC. & REM. § 101.106(e). This section serves the purpose of avoiding
duplicative claims that should have only been brought against the governmental unit. Tex. Dep’t of Aging
& Disability Servs. v. Cannon, 453 S.W.3d 411, 415 (Tex. 2015). It accomplishes this purpose by providing
for the expedient dismissal of governmental employees that are sued at the same time as the governmental
unit when the governmental unit files a motion to dismiss under Section 101.106(e). Id. When the
governmental unit files a Section 101.106(e) motion to dismiss, it “effectively confirms the employee was
acting within the scope of employment and that the government, not the employee, is the proper party.”
Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013).
15
Appellant’s sixth issue concerns the City’s claim of governmental immunity
to Appellant’s claims for intentional infliction of emotional distress; negligent
hiring, training, supervision, and retention; and respondeat superior. The City
asserted that it had governmental immunity from these claims under the Tort Claims
Act. “Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from lawsuits and liability for money
damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.
2008). The State retains sovereign immunity from suit to the extent that immunity
has not been abrogated by the legislature. See Tex. Nat. Res. Conservation
Comm'n v. IT–Davy, 74 S.W.3d 849, 853 (Tex. 2002). “Governmental immunity
operates like sovereign immunity to afford similar protection to political
subdivisions of the State, including counties, cities, and school districts.” Harris
Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)).
Governmental immunity encompasses both immunity from suit and immunity
from liability. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
2006); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from
suit completely bars actions against governmental entities unless the legislature
expressly consents to suit. Reata Constr., 197 S.W.3d at 374. Immunity from suit
deprives the courts of subject-matter jurisdiction and thus completely bars the
plaintiff’s claims. Wichita Falls State Hosp., 106 S.W.3d at 696. Whether a court
has subject-matter jurisdiction is a legal question that we review de novo. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Ector Cty. v.
Breedlove, 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004, no pet.).
The Act provides a limited waiver of immunity, allowing suits to be brought
against governmental units only in certain, narrowly defined circumstances. Tex.
Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); W. Odessa
16
Volunteer Fire Dep’t, Inc. v. Contreras, 549 S.W.3d 203, 207–08 (Tex. App.—
Eastland 2018, no pet.); Breedlove, 168 S.W.3d at 865. Appellant contends that the
Act does not apply to his claims for intentional infliction of emotional distress;
negligent hiring, training, supervision, and retention; or respondeat superior because
he filed a Section 1983 action. 6 We disagree with Appellant for two reasons. First,
Appellant pleaded his claims for intentional infliction of emotional distress and
negligent hiring, training, supervision, and retention in separate counts from his
Section 1983 claims. Second, we have determined that Appellant did not plead a
viable Section 1983 claim because he did not allege a protected property interest or
liberty interest. Accordingly, the City has governmental immunity for Appellant’s
claims for intentional infliction of emotional distress; negligent hiring, training,
supervision, and retention; and respondeat superior unless there is a waiver for these
claims under the Act.
The Tort Claims Act does not waive immunity for a claim based on an
intentional tort. CIV. PRAC. & REM. § 101.057(2). Accordingly, the City has
governmental immunity for Appellant’s claim for intentional infliction of emotional
distress. See Midland Indep. Sch. Dist. v. Watley, 216 S.W.3d 374, 382 (Tex. App.—
Eastland 2006, no pet.). Also, a claim for negligent hiring, training, supervision, and
retention is not cognizable under the Tort Claims Act because such a claim does not
involve an injury arising from the condition or use of tangible personal property or
real property or involve motor-driven equipment. See CIV. PRAC. & REM. § 101.021;
Goodman v. Harris Cty., 571 F.3d 388, 394 (5th Cir. 2009); Meyer v. Coffey, 231 F.
Supp. 3d 137, 151 (N.D. Tex. 2017); Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d
575, 580–81 (Tex. 2001). Finally, Appellant’s failure to allege a viable claim under
Appellant acknowledges in his brief that his claims against the City for intentional infliction of
6
emotional distress and negligent hiring, training, supervision, and retention are precluded by the Tort
Claims Act.
17
either Section 1983 or the Tort Claims Act precludes his claim to hold the City
vicariously liable under the theory of respondeat superior. 7 See DeWitt v. Harris
Cty., 904 S.W.2d 650, 653 (Tex. 1995). We overrule Appellant’s sixth issue.
In his seventh issue, Appellant asserts that the trial court erred by granting
summary judgment on his claim for intentional infliction of emotional distress.
Appellant contends that he established a prima facie case of intentional infliction of
emotional distress. We need not address this contention because the claims against
the individual defendants were dismissed, and we have upheld the trial court’s
determination that the City had governmental immunity to Appellant’s claim for
intentional infliction of emotional distress. We overrule Appellant’s seventh issue.
In his eighth issue, Appellant asserts that the trial court erred by granting
summary judgment on his claims for respondeat superior and negligence based on
the theories of negligent hiring, training, supervision, and retention. Appellant
asserts that he established a prima facie case for these claims. As was the case with
Appellant’s claim for intentional infliction of emotional distress, we need not
address his contentions in his eighth issue because the individual defendants were
dismissed and we have upheld the trial court’s determination that the City had
governmental immunity to Appellant’s claims for respondeat superior and
negligence based on the theories of negligent hiring, training, supervision, and
retention. We overrule Appellant’s eighth issue.
In his ninth issue, Appellant contends that the trial court erred by granting
summary judgment on his claim of slander against Barrera and Carpenter. He
contends that he established a prima facie case of slander against Barrera and
Carpenter. Appellant asserts that he only asserted these claims against Barrera and
7
We note that “[a] municipality cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v.
Dep’t of Social Servs., 436 U.S. 658, 691 (1978).
18
Carpenter in their individual capacities. However, Appellant has not challenged the
dismissal of the claims against the individual defendants. Moreover, the only basis
for Appellant’s contention that he established a prima facie claim for slander is the
following statement in his summary judgment affidavit: “Maria Ruiz, the owner of
Pancho Patron Restaurant, notified me that BARRERA (my ex-boss) and
CARPENTER came to the restaurant in uniform, and they talked to her about me,
slandering my character by insinuating that ‘I involved [sic] in illegal dealings and
that is how I pay for my house and vehicles.’” We have determined in our
consideration of Appellant’s second issue that the trial court did not err in
determining that this statement constituted inadmissible hearsay. Accordingly, we
overrule Appellant’s ninth issue.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
April 30, 2021
Panel consists of: Bailey, C.J.,
Williams, J., and Wright, S.C.J.8
Trotter, J., not participating.
8
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
19