jimmy-lee-sweed-v-city-of-el-paso-police-department-city-of-el-paso ( 2009 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
JIMMY LEE SWEED, No. 08-08-00224-CV
§
Appellant, Appeal from the
§
V. 448th District Court
§
CITY OF EL PASO POLICE of El Paso County, Texas
DEPARTMENT, CITY OF EL PASO, §
JAIME ESPARZA, DISTRICT (TC# 2008-159 )
ATTORNEY AND EL PASO COUNTY §
DISTRICT ATTORNEY’S OFFICE OF
EL PASO, TEXAS, §
Appellees.
OPINION
This is an appeal from the granting of a plea to the jurisdiction and motion to dismiss in a
suit for damages resulting from an alleged false arrest, false imprisonment, defamation of
character, and denial of due process and due course of law. We affirm.
Appellant filed this suit alleging false arrest, false imprisonment, defamation of character,
denial of due process and due course of law, and physical and mental suffering following his
arrest related to the robbery of a Circle K Convenience Store in El Paso, Texas. Appellees filed
pleas to the jurisdiction and motions to dismiss, which were granted by the trial court. The trial
court found that Plaintiff was obligated to comply with the requirements of Section 89.0041 of
the Texas Local Government Code requiring notice of suit to the County Attorney and the
County Judge within 30 days of filing suit. The court further found that Plaintiff was obligated
to provide notice under Section 101.101 of the Texas Civil Practice and Remedies Code and
failed to do so. El Paso County had not waived its sovereign immunity from claims of personal
injury resulting from personal torts. The court found the District Attorney’s office had no legal
existence and capacity to be sued since it is not a separate entity from El Paso County. Finally,
the court found that District Attorney Jaime Esparza was immune from suit given the claims
alleged. In a separate order, the trial court found that the City of El Paso was immune from suit
under 101.021 of the Texas Civil Practice and Remedies Code and the claims do not fall into any
of the limited waivers of immunity. The trial court found the El Paso Police Department to be a
department of the City of El Paso with no capacity or existence to be sued individually. Mr. Seed
filed this appeal pro se challenging the trial court’s orders.
Pro se litigants are held to the same standards as licensed attorneys and must comply with
all applicable rules of procedure. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.--
El Paso 2006, no pet.). A pro se litigant is required to properly present his case on appeal, just as
he is required to do at the trial court. Strange v. Continental Cas. Co., 126 S.W.3d 676, 678
(Tex.App.--Dallas 2004, pet. denied), cert. denied, 543 U.S. 1076, 125 S. Ct. 928, 160 L. Ed. 2d
816 (2005). In as much as we can ascertain from Appellant’s brief, Appellant’s first issue on
appeal is the application of the Texas Torts Claims Act to his suit rather than construing it to be a
42 U.S.C. § 1983 suit.
A cause of action under 42 U.S.C. § 1983 requires the conduct complained-of to be
committed by a person acting under color of state law, and the conduct deprived a person of
rights, privileges, or immunities secured by the Constitution or laws of the United States. County
of El Paso v. Dorado, 180 S.W.3d 854, 862 (Tex.App.--El Paso 2005, pet. denied.). A claim for
deprivation of federally secured rights that fail to invoke Section 1983 is fatally defective and
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fails to state a claim upon which relief can be granted. Hearth, Inc. v. Dept. of Public Welfare,
617 F.2d 381, 383 (5th Cir. 1980). After a review of the Appellant’s Original Petition and in line
with the trial court’s findings, Appellant failed to allege a proper Section 1983 claim. We find
the pleadings raise only tort claims, to which the trial court properly applied the Texas Tort
Claims Act. This issue is overruled.
We will address two issues where Appellant asks us to incorporate specific pages from a
motion for reconsideration into the brief. The clerk’s record contains two different motions to
reconsider. It is Appellant’s burden to discuss his assertions of error. Valadez v. Avitia, 238
S.W.3d 843, 845 (Tex.App.--El Paso 2007, no pet.). An appellate court has no duty, or even the
right, to perform an independent review of the record and applicable law to determine whether
there was error. An issue presented for review is sufficient if it directs the reviewing court’s
attention to the error about which the complaint is made. Id. Appellant fails to specify which
motion to reconsider he is incorporating into his brief. As such, we are unable to determine
which motion for reconsideration Appellant is referring to and these issues have not been
presented for review. See TEX .R.APP .P. 38.1. These issues are overruled.
Appellant argues in the next issue that the suit is not against the District Attorney’s Office
separately, but is against El Paso County in its corporate name. Appellant argues the trial court
found the opposite. In a related issue, Appellant argues El Paso County has the capacity to be
sued and sued in its corporate name. The court consider the claim as both against El Paso
County and against the District Attorney’s Office separately. The trial court found that El Paso
County was protected by sovereign immunity, and that the District Attorney’s Office was part of
the entity, El Paso County. The arguments raised present no issues for this Court to review. The
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issues are overruled.
Having overruled all of Appellant’s issues, we affirm the trial court’s order dismissing the
suit.
September 30, 2009
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Rivera, JJ.
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