Patricia Ann Bogan v. Denton County District Attorney, Denton County Sheriff's Department, City of Denton Police Department, and City of Denton Mayor's Office ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00264-CV
___________________________
PATRICIA ANN BOGAN, Appellant
V.
DENTON COUNTY DISTRICT ATTORNEY, DENTON COUNTY SHERIFF’S
DEPARTMENT, CITY OF DENTON POLICE DEPARTMENT, AND CITY OF
DENTON MAYOR’S OFFICE, Appellees
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 18-3417-431
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion Justice Wallach
MEMORANDUM OPINION
Patricia Ann Bogan appeals from the trial court’s grant of the pleas to the
jurisdiction filed by Appellees the Denton County District Attorney (the District
Attorney), the Denton County Sheriff’s Department (the Sheriff), the City of Denton
Police Department (the Police), and the City of Denton Mayor’s Office (the Mayor)
(collectively Appellees). Because Bogan does not challenge the grounds on which the
trial court granted the pleas, we affirm.
Background
In her “3rd Amended Supplemental Petition, Request for Injunction, Request
for Admissions, Request for Disclosure,” Bogan’s main complaint appeared to be that
she had been subjected to electronic surveillance for decades, beginning in the early
1990s and continuing through at least April 2018. She did not make clear who was
responsible for the surveillance. Bogan alleged that in June 1990, “after leaving
Moore Business Forms Denton Texas 1 after the situation escalated with the [manager
and the supervisor] regarding the two of them not wanting [her] to have the job,” she
began “experiencing problems with libel on the job, with Electronic Surveillance
during and after leaving Moore.” She stated that she had been told that the spouse of
Denton police officer Roger White “wanted to have the job.” She alleged a number
of complaints about former coworkers, neighbors, a realtor, and a jailer with the
In an earlier filing, Bogan stated that she had been employed with Moore
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Business Forms from 1982 to 1990.
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Denton Sheriff’s department who she alleged once “ran [her] down in the streets.”
She stated that she filed her complaint “[d]ue to the nature of the ongoing problem
with the laser (coherent lights) and the attacks from the laser with excessive
radiation,” which she alleged were causing her various health issues. It is not clear
from her petition what the laser is or who is responsible for it. She made other
allegations in her petition that are unclear and not clearly connected to actions of
Appellees. Under a section labeled “Cause of Action,” Bogan alleged personal injury
resulting from electronic and drone surveillance and “[o]n the job harassment with [a]
laser.” In one sentence, she stated that sovereign immunity had been waived under
Section 101.025 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.025 (providing that “[s]overeign immunity to suit is waived
and abolished to the extent of liability created by this chapter”).
Each defendant filed an answer, special exceptions, affirmative defenses, and a
plea to the jurisdiction. The District Attorney’s plea to the jurisdiction asserted that
Bogan had failed to “identify the state statutory basis upon which [she] bases her
claims” and “does not explain how the claim escapes governmental immunity from
suit.” It pointed out that to invoke a trial court’s jurisdiction over a claim, a claimant
“must plead a legal and factual cause of action within the expressed terms of the
Texas Tort Claims Act or other statutory waiver of immunity” and argued that Bogan
had failed to allege a valid cause of action under Texas Civil Practice and Remedies
Code Section 101.021(2), to “specifically reference the statutory waiver of
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governmental immunity from suit,” and to “identify the recoverable damages for
which immunity is waived.” See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2)
(providing that a governmental unit is liable for “personal injury and death so caused
by a condition or use of tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant according to Texas law”).
The Sheriff and the City of Denton (the City), on behalf of the Mayor and the Police,
filed pleas that were essentially identical to the District Attorney’s. The Sheriff further
asserted that it is a non-jural entity that lacks the capacity to be sued, and the City
made the same assertion on behalf of the Mayor and the Police. While Bogan filed
her third amended supplemental petition after Appellees filed their pleas to the
jurisdiction, she did not file a separate answer to the pleas.
After a hearing, the trial court granted each plea to the jurisdiction in separate
orders that dismissed Bogan’s claims with prejudice. Bogan now appeals.
Discussion
On appeal, Bogan brings two issues: (1) “[th]e appellee/defendant continues to
refer to the original petition and not the 3rd amended supplemental petition in his
judgment/decision,” and (2) “[a] present violation constitutes an ongoing continuous
tort.” In her framing of her second issue, she also sets out Article 18A.107 of the
Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann.
art. 18A.107 (setting out the length of time for which a court may authorize an order
for interception of wire, oral, or electronic communications).
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In her arguments, Bogan asserts that the trial court “erred in that he excluded
the 3rd supplemental amended petition as a reason not to proceed as requested in
answering discovery or [to] proceed with the case” and by “exclud[ing] consideration
of amendment as to reflect ongoing continuous tort violation of Electronic
Surveillance with assaults and the lethality of the weapon being used.” She further
challenges the City’s responses to her interrogatories as inadequate and argues that
various people, including a Denton police officer, had trespassed on her property
without probable cause.
Counties and cities are entitled to governmental immunity and thus to
immunity from suit. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). “The
Texas Tort Claims Act provides a limited waiver of governmental immunity if certain
conditions are met.” Id. However, nowhere in Bogan’s brief does she argue that she
pled a valid waiver under the Texas Tort Claims Act or other statutory waiver of
immunity other than to state that she “filed a 3rd amended petition on June 13,
2019 with proper jurisdictional procedure and waiver of immunity etc.” While she
acknowledges that Appellees “objected due to a Lack of Jurisdiction [and] sovereign
immunity,” she does not explain how her pleadings state a claim for which Appellees’
governmental immunity has been waived. She asserts that she finds it “absurd that
law enforcement is being allowed to continue in tort; attacking [her] with a lethal
nuclear weapon relating to medical malpractice,” but it is unclear how this assertion
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relates to her pleaded claims or who she alleges has been attacking her with a lethal
weapon.
To succeed on an appeal from a judgment or order granting a plea to the
jurisdiction, an appellant must challenge each ground on which the appellee sought
judgment and which may have supported the trial court’s judgment or order. S.W. ex
rel. A.W. v. Arlington Indep. Sch. Dist., 435 S.W.3d 414, 419 (Tex. App.—Fort Worth
2014, no pet.). If an unchallenged ground fully supports the complained-of ruling or
judgment, but the appellant assigns no error to that ground, then this court must
accept the validity of that unchallenged ground, and, because the unchallenged ground
fully supports the complained-of judgment or order, we must affirm the judgment or
order. Id.; see also Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) (holding that when a trial court grants,
without specifying grounds, a plea to the jurisdiction that is based on multiple
grounds, and the appellant does not challenge each ground, the court of appeals must
affirm on the unchallenged ground). Bogan does not argue in her brief that her
pleadings assert claims for which immunity has been waived and that the entities she
sued all had the capacity to be sued, and, as such, we must affirm the trial court’s
granting of the pleas to the jurisdiction.
Bogan does argue in her brief that the trial court excluded her third amended
supplemental petition and should have allowed her time to amend her petition. As to
her complaint about the exclusion of her amended pleading, the record does not
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support her claim. Rather, the trial court specifically acknowledged her third amended
supplemental petition at the hearing on the pleas to the jurisdiction.
As for the opportunity to replead, the record does not show that Bogan
requested and was denied the opportunity to file an amended pleading. We further
note that Bogan filed her third amended supplemental petition nearly a year after the
District Attorney filed its plea to the jurisdiction, ten months after the Sheriff filed its
plea to the jurisdiction, and over a month after the City filed its plea to the
jurisdiction. Bogan thus “had the opportunity to, and did in fact, amend [her]
pleadings in the trial court” after Appellees filed their pleas to the jurisdiction. See
Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016).
Finally, “a pleader must be given an opportunity to amend in response to a plea
to the jurisdiction only if it is possible to cure the pleading defect.” Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). From Bogan’s third amended
supplemental petition, it did not appear that she had alleged facts indicating that her
injuries were caused by Appellees’ use of tangible personal property or by a condition
on Appellees’ real property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).
Instead, she complained about the acts of nonparties at a job she held decades before;
electronic surveillance by an unspecified person or persons; and lasers of an
unspecified type, used in an unspecified way and by an unspecified person. She also
complained about tampering with evidence by the Smith County District Attorney’s
office and listed complaints she had filed with other law enforcement or investigative
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agencies, including the FBI. Bogan does not explain in her brief how she could
amend her petition to establish a waiver of immunity for the claims she asserted,
either under Section 101.021(2) or some other waiver of immunity. She does not
argue that the trial court was incorrect to conclude that the Sheriff, the Police, and the
Mayor lack the capacity to be sued or explain how she could allege facts to show that
they had such capacity. See Delgado v. River Oaks Police Dep’t, No. 02-15-00205-CV,
2016 WL 6900900, at *1 (Tex. App.—Fort Worth Nov. 23, 2016, no pet.) (mem. op.)
(holding that the appellant had waived his complaint regarding the trial court’s finding
that the defendant police department lacked the capacity to be sued and waived his
complaint that the trial court should have afforded him the opportunity to amend his
pleading). She does not contend that the jurisdictional bar to her claims arose from a
lack of factual allegations—which she could fix with an amendment—rather than
from the nature of her claims. See Clint Indep. Sch. Dist., 487 S.W.3d at 559 (holding
that where the appellees suggested they could cure their pleading defects not by
adding more jurisdictional facts but by changing the claims they brought, they were
not entitled to a remand for an opportunity to amend their pleadings). Accordingly,
she has not shown that she was entitled to the opportunity to again amend her
pleadings.
We overrule Bogan’s two issues.
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Conclusion
We affirm the trial court’s orders dismissing Bogan’s claims with prejudice.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: December 31, 2019
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