John Vernon Hearnsberger v. Panola County, Texas Jack Ellett David Jeter and Ronald Clinton ( 2016 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00008-CV
JOHN VERNON HEARNSBERGER, Appellant
V.
PANOLA COUNTY, TEXAS; JACK ELLETT;
DAVID JETER AND RONALD CLINTON, Appellees
On Appeal from the County Court at Law
Panola County, Texas
Trial Court No. 2015-371
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
On October 20, 2015, John Vernon Hearnsberger filed a pro se action for false
imprisonment and malicious prosecution against Panola County, its former sheriff, Jack Ellett, and
two of its deputies, David Jeter and Ronald Clinton, in the 123rd Judicial District Court of Panola
County. On October 30, 2015, Panola County and the individual defendants filed a motion to
dismiss the individual defendants pursuant to Section 101.106(e) and (f) of the Texas Civil Practice
and Remedies Code1 and to dismiss the County since its immunity had not been waived. On
December 14, 2015, the judge of the district court signed an order transferring the case to the
County Court at Law of Panola County, although the signed order was not filed of record until
December 21, 2015. On December 15, 2015, the Honorable Terry D. Bailey, judge of the county
court at law, heard the motion to dismiss2 and signed an order dismissing the case as to all
defendants.
1
Section 101.106 is entitled “Election of Remedies” and provides:
(a) The filing of a suit under this chapter against a governmental unit constitutes an
irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the
plaintiff against any individual employee of the governmental unit regarding the same subject
matter.
....
(e) If 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.
(f) If a suit is filed against an employee of a governmental unit based on conduct
within the general scope of that employee’s employment and if it could have been brought under
this chapter against the governmental unit, the suit is considered to be against the employee in the
employee’s official capacity only. On the employee’s motion, the suit against the employee shall
be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date the motion is filed.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (e), (f) (West 2011).
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Although Hearnsberger received proper notice of the hearing, he did not appear.
2
On appeal, Hearnsberger asserts that the county court at law erred in hearing the motion
since the order transferring the case to that court had not been filed and that the irregularity in the
transfer violated the Texas Rules of Civil Procedure and his due process rights. Hearnsberger does
not challenge the merits of the dismissal. We affirm the judgment of the trial court.
In his brief, Hearnsberger does not cite any rule of civil procedure, statute, constitutional
provision, or caselaw to support his points of error. Our appellate Rules require that the appellant’s
brief “contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” TEX. R. APP. P. 38.1(i); Moseley v. Arnold, 486 S.W.3d 656, 660
n.5 (Tex. App.—Texarkana 2016, no pet.); In re Estate of Curtis, 465 S.W.3d 357, 379 (Tex.
App.—Texarkana 2015, pet. dism’d). In his brief, Hearnsberger fails to cite any authority in
support of his arguments. “[F]ailure to cite authority in support of a point of error waives the
complaint.” Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex. App.—El Paso 1997, no writ); see also
Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 303 n.28 (Tex. App.—Austin 2000, pet.
denied) (issue without argument or authority is waived). In addition, an appellant claiming that
his constitutional rights have been violated must show how those rights were violated. See Custer
v. Wells Fargo Bank, N.A., No. 03-15-00362-CV, 2016 WL 1084165, at *3 (Tex. App.—Austin
Mar. 18, 2016, pet. filed); see Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 844 (Tex. 2012)
(refusing to consider appellant’s constitutional claim when he failed to demonstrate how his
constitutional rights were violated). Hearnsberger has not demonstrated how his right to due
process was violated by the county court at law holding a hearing, for which he had proper notice,
in a case that had been transferred to it by the district court. Therefore, we find that these points
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of error are waived as inadequately briefed. Thomas v. Graham Mortg. Corp., 408 S.W.3d 581,
595 n.5 (Tex. App.—Austin 2013, pet. denied).
Even if Hearnsberger had not waived his points of error, we find no irregularity that merits
reversal. In Panola County, the county court at law has concurrent jurisdiction with the district
court. TEX. GOV’T CODE ANN. § 25.1852(a) (West Supp. 2016). District courts and statutory
county courts “have broad discretion to exchange benches and enter orders on other cases in the
same county, even without a formal order or transfer.” In re U.S. Silica Co., 157 S.W.3d 434, 439
(Tex. 2005) (per curiam) (orig. proceeding) (citing TEX. GOV’T CODE ANN. § 74.094(a)). Section
74.094 provides:
(a) A district or statutory county court judge may hear and determine a
matter pending in any district or statutory county court in the county regardless of
whether the matter is preliminary or final or whether there is a judgment in the
matter. The judge may sign a judgment or order in any of the courts regardless of
whether the case is transferred. The judgment, order, or action is valid and binding
as if the case were pending in the court of the judge who acts in the matter.
TEX. GOV’T CODE ANN. § 74.094(a) (West 2013) (emphasis added). Further, the district court and
county court at law in Panola County have adopted local rules mirroring Section 74.094(a). See
123RD (TEX.) DIST. CT. & COUNTY COURT AT LAW LOC. R. 1.13(b) (Panola County). Therefore,
whether the case had been effectively transferred at the time of the hearing or not, the county court
at law had the authority to hear the motion to dismiss and to enter the order of dismissal. See In
re M.A.W., 31 S.W.3d 372, 374–75 (Tex. App.—Corpus Christi 2000, no pet.).
4
We affirm the judgment of the trial court.
Ralph K. Burgess
Justice
Date Submitted: July 28, 2016
Date Decided: August 26, 2016
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