Todd A. Durden v. James T. 'Tully' SHAHAN, in His Official Capacities as County Judge Mark Frerich, in His Official Capacity as County Commissioner Joe Montalvo, in His Official Capacity as County Commissioner Dennis Dodson, in His Official Capacity as County Commissioner Tim Ward, in His Official Capacity as County Commissioner Kinney County Commissioners Court Kinney County, and Rick Alvarado, in His Official Capacity as District and County Clerk of Kinney ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
Nos. 04-19-00714-CV, 04-19-00715-CV, 04-19-00716-CV
Todd A. DURDEN,
Appellant
v.
James T. “Tully” SHAHAN, In His Official Capacity as County Judge; Mark Frerich, In His
Official Capacity as County Commissioner; Joe Montalvo, In His Official Capacity as County
Commissioner; Dennis Dodson, In His Official Capacity as County Commissioner; Tim Ward,
In His Official Capacity as County Commissioner; Kinney County Commissioners Court;
Kinney County; and Rick Alvarado, In His Official Capacity as District and County Clerk of
Kinney County, Texas
Appellees
From the 63rd Judicial District Court, Kinney County, Texas
Trial Court Nos. 4845, 4863, 4866
Honorable Sid L. Harle, Judge Presiding 1
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: August 23, 2023
VACATED IN PART; AFFIRMED IN PART
In these appeals on remand from the Supreme Court of Texas, we consider whether the
trial court had personal jurisdiction over Appellant Todd A. Durden in his individual capacity.
Because the record conclusively establishes that the trial court never obtained personal jurisdiction
1
The Honorable Roland Andrade is the presiding judge of the 63rd Judicial District Court. The Honorable Sid L.
Harle, sitting by assignment, signed the judgments being appealed.
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over Durden individually, the portions of its judgments that tax costs of court, assess sanctions,
and award appellate attorney’s fees against Durden individually are void. We vacate those portions
of the judgments.
BACKGROUND
Before we present the applicable law and analysis for the remaining issues in these
remanded causes, we summarize the relevant procedural history for the three related suits that
underlie these appeals.
A. Consolidated Trial Court Causes
Todd A. Durden, acting in his then-official capacity as Kinney County Attorney, filed three
civil suits against the Kinney County Judge, the Kinney County Commissioners, the Kinney
County Commissioners Court, Kinney County, and the District and County Clerk of Kinney
County, Texas (collectively Appellees). In the original petitions and successive pleadings,
Durden, purporting to act on behalf of the State of Texas, signed each in his official capacity as
Kinney County Attorney.
The three causes were heard together by the trial court, but separate notices of appeal were
filed for each cause. The trial court causes and appeals align as follows:
Trial Court Cause Appeal Number
4845 04-19-00714-CV
4863 04-19-00715-CV
4866 04-19-00716-CV
B. Causes of Action, Dispositions
Durden’s suits claimed, inter alia, that when the Kinney County officials reduced his salary,
they violated provisions of the Open Meetings Act, the Local Government Code, and his due
process rights.
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Appellees argued that Durden had no standing or authority in the suits to act on behalf of
Kinney County or to represent the State of Texas. In each case, Appellees moved to dismiss the
suit and moved for summary judgment.
The trial court concluded Durden had no legal authority to bring the civil suits on behalf
of the State of Texas, and it dismissed Durden’s claims. In each of the three judgments, the trial
court taxed costs of court, assessed sanctions, and awarded appellate attorney’s fees against
Durden individually.
C. Previous Appeals
Durden appealed. Acting as Kinney County Attorney, Durden filed notices of appeal for
the State, but he did not file notices of appeal in his individual capacity.
We concluded Durden had no capacity to initiate or maintain the suits on behalf of the
State. State ex rel. Durden v. Shahan, 648 S.W.3d 339, 346 (Tex. App.—San Antonio 2021), aff’d
in part, rev’d in part and remanded, 658 S.W.3d 300 (Tex. 2022). Because we also concluded
Durden failed to perfect his appeals in his individual capacity, and we could not grant him any
relief in his individual capacity, we affirmed the trial court’s judgments that included sanctions
against him individually. Id. at 345, 347.
In the supreme court, Durden filed petitions of review, and it granted them. It agreed with
this court that Durden lacked authority to file the suits on the State’s behalf and that “his attempt
to appeal the sanctions orders was defective.” State ex rel. Durden v. Shahan, 658 S.W.3d 300,
304 (Tex. 2022). But it concluded “that Durden made a ‘bona fide’ attempt to invoke appellate
jurisdiction over the sanctions orders,” id. at. 305, and we “should have accepted [Durden’s] appeal
from the sanctions order or permitted him to amend the notices of appeal,” id. at. 302. It reversed
the portions of our judgments pertaining to Durden’s sanctions, and it remanded the causes for our
further proceedings. Id. at 305.
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D. Parties, Issues on Remand
On remand, we concluded that (1) Durden, in his individual capacity, was the sole
appellant, and (2) the only remaining issues are those pertaining to the portions of the trial court’s
judgments that tax costs of court, assess sanctions, and award appellate attorney’s fees against
Durden individually. Given the changes in the parties and issues since the original briefs were
filed, we ordered the parties to file amended briefs.
In his amended brief, Durden presents three issues. First, the costs, sanctions, and appellate
attorney’s fees portions of the judgments are void because the trial court lacked personal
jurisdiction over him individually. Second, because he acted solely in his official capacity, he has
absolute immunity from suit. Third, the trial court’s sanctions lack proper legal basis and sufficient
evidence.
PERSONAL JURISDICTION
In his first issue, Durden challenges the trial court’s personal jurisdiction over him in his
individual capacity.
A. Parties’ Arguments
Durden contends the record conclusively proves that he was never served with citation or
given notice in his individual capacity; he did not sign any of the pleadings in his individual
capacity; no pleadings identify him, individually, as a party; he appeared and argued exclusively
in his official capacity; and Appellees acknowledged that he acted in his official capacity only.
Appellees insist that Durden repeatedly and knowingly violated Rule 13—which they
argue “clearly holds ‘attorneys’ responsible for the contents of the pleadings they sign, irrespective
of their claimed capacity.” They also imply that the trial court had personal jurisdiction over
Durden individually because he “violated Rule 13 by signing pleadings a lawyer of his experience
should have known were without merit, and that he lacked the capacity to file such litigation.”
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Before we address the parties’ arguments, we briefly recite the applicable law.
B. Requisites for Personal Jurisdiction
“Personal jurisdiction involves a court’s ability to bind a particular party to that judgment.”
Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 8 (Tex. 2021) (citing CSR Ltd. v. Link,
925 S.W.2d 591, 594 (Tex. 1996)).
A party may be bound to a judgment by “citation issued and served in a manner provided
for by law.” Guardianship of Fairley, 650 S.W.3d 372, 380 (Tex. 2022) (quoting In re E.R., 385
S.W.3d 552, 563 (Tex. 2012)). A party may also be bound if the party accepts or waives service
or makes a general appearance. Zanchi v. Lane, 408 S.W.3d 373, 378 (Tex. 2013) (citing Mapco,
Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) (per curiam)); Guardianship of Fairley, 650
S.W.3d at 380 (recognizing that “unlike challenges to subject-matter jurisdiction, objections to
personal jurisdiction generally can be waived”).
To reiterate, “[i]n no case shall judgment be rendered against any defendant unless upon
service, or acceptance or waiver of process, or upon an appearance.” Mapco, 817 S.W.2d at 687
(citing TEX. R. CIV. P. 124); accord Zanchi, 408 S.W.3d at 378. Where there is no acceptance,
waiver, or general appearance, even “[a]ctual notice to a defendant, without proper service, is not
sufficient to convey upon the court jurisdiction to render default judgment against him.” Wilson
v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); see also Mapco, 817 S.W.2d at 687.
C. Distinguishing Capacities
Texas law recognizes that the same person may have different legal capacities which have
separate rights and liabilities. E.g., City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009);
accord Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n.6 (1986) (“Acts performed by
the same person in two different capacities ‘are generally treated as the transactions of two
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different legal personages.’” (quoting F. James & G. Hazard, CIVIL PROCEDURE § 11.6, p. 594 (3d
ed. 1985))).
“[A] person sued in his legal capacity is regarded as a distinct legal personage from that
same person sued in his individual capacity.” Nueces Cnty. v. Ferguson, 97 S.W.3d 205, 214 (Tex.
App.—Corpus Christi–Edinburg 2002, no pet.) (citing Elizondo v. Tex. Nat. Res. Conservation
Comm’n, 974 S.W.2d 928, 931 (Tex. App.—Austin 1998, no pet.)).
Stated another way, “[a] person who sues or is sued in his official or representative capacity
is, in contemplation of law, regarded as a person distinct from the same person in his individual
capacity and is a stranger to his rights or liabilities as an individual.” Elizondo, 974 S.W.2d at 931(quoting Alexander v. Todman, 361 F.2d 744, 746 (3d Cir. 1966)).
Accordingly, “in the eyes of the law, [a person sued] in his individual capacity is not the
same person as [that same person] in his capacity as a representative of [a separate legal entity].”
Ghaffari v. Empire Petrol. Partners LLC, No. 02-17-00164-CV, 2018 WL 1005237, at *3 (Tex.
App.—Fort Worth Feb. 22, 2018, pet. denied) (mem. op.); accord Elizondo, 974 S.W.2d at 931.
It follows that “[a] person filing suit against an individual solely in an official capacity . . .
cannot impose liability or recover damages from that same person in an individual capacity.”
Ferguson, 97 S.W.3d at 214; accord Elizondo, 974 S.W.2d at 931.
D. Standard of Review
“Whether a court may exercise [personal jurisdiction] over a party is a question of law,
which we review de novo.” Luciano, 625 S.W.3d at 8; accord Retamco Operating, Inc. v. Republic
Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009).
E. Potential Bases for Personal Jurisdiction
In the underlying suits, the trial court taxed costs of court, assessed sanctions, and awarded
appellate attorney’s fees against Durden in his individual capacity. To bind Durden to its
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judgments, the trial court had to have personal jurisdiction over Durden individually, which could
be established by proper service, acceptance or waiver of service, or a general appearance. See
Mapco, 817 S.W.2d at 687. We consider each basis in turn.
1. Proper Service
Durden would be bound by the trial court’s judgments if a “citation issued and [was] served
in a manner provided for by law” that named him individually and included a document notifying
him that Appellees were seeking sanctions against him individually. See Guardianship of Fairley,
650 S.W.3d at 380 (quoting In re E.R., 385 S.W.3d at 563).
As the parties seeking sanctions against Durden, Appellees were responsible for proper
citation and service on him individually. See TEX. R. CIV. P. 99; Wilson, 800 S.W.2d at 836. They
were also responsible for ensuring “that service is properly reflected in the record.” See Primate
Const., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (per curiam); Orgoo, Inc. v. Rackspace
US, Inc., 341 S.W.3d 34, 41 (Tex. App.—San Antonio 2011, no pet.).
Appellees do not assert that the record shows Durden was properly served in his individual
capacity, and Durden argues nothing in the record shows he was.
Having searched the records for each appeal, we have found no evidence of proper citation
and service of any Appellees’ motion for sanctions against Durden individually. See Guardianship
of Fairley, 650 S.W.3d at 380.
2. Acceptance, Waiver of Service
Durden could subject himself individually to the trial court’s judgments by accepting or
waiving service in his individual capacity. See Zanchi, 408 S.W.3d at 378 (citing Mapco, 817
S.W.2d at 687). Appellees argue Durden admitted accepting receipt of citation related to Rule 13
sanctions, and that is true in part.
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In the State’s Motion for Sanctions, which Durden prepared and filed in his official
capacity, he notes that Appellees’ “Other Form of Request included Citations for consideration of
sanctions under Rule 13.” Durden admits he accepted service of the Rule 13 citations.
But each citation states that “THIS COURT ISSUES NOTICE AND CITATION to Todd
A. Durden, County Attorney of Kinney County, Texas.” The citations do not mention Durden in
his individual capacity.
Further, in Appellees’ Motion to Dismiss and Motion for Summary Judgment in cause
number 4845, they stated that in all three suits, “Mr. Durden only claims to be representing the
State of Texas in his ‘official capacity as county attorney.’ By doing so, he has abandoned any
rights he would have as an individual, even assuming he had some right to sue individually.”
Having searched the records for each appeal, we have found no evidence that Durden ever
accepted or waived citation and service for any motion by Appellees for sanctions against him
individually. See Mapco, 817 S.W.2d at 687.
3. General Appearance
Durden could also subject himself individually to the trial court’s judgments by making a
general appearance, see Zanchi, 408 S.W.3d at 378 (citing Mapco, 817 S.W.2d at 687), but there
is no evidence that he did.
The record shows that Durden filed each suit on behalf of the State of Texas in his official
capacity as County Attorney of Kinney County. All the pleadings Durden filed were signed in his
official capacity. At the hearings for which we have a reporter’s record, Durden identified himself
as acting in his official capacity as Kinney County Attorney on behalf of the State of Texas.
Appellees repeatedly challenged Durden’s authority to act on behalf of the State, but they
stated that in all three suits, “Mr. Durden only claims to be representing the State of Texas in his
‘official capacity as county attorney.’”
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Having reviewed the records for each appeal, we conclude there is no evidence that
Durden’s actions constituted a general appearance in his individual capacity. See Zanchi, 408
S.W.3d at 378 (citing Mapco, 817 S.W.2d at 687).
F. No Bases for Personal Jurisdiction
To bind Durden to its judgments, the trial court had to have personal jurisdiction over
Durden individually, but the records contain no evidence that Durden, in his individual capacity,
was properly served, accepted or waived service, or acted in ways to constitute a general
appearance. See Guardianship of Fairley, 650 S.W.3d at 380; Mapco, 817 S.W.2d at 687.
Accordingly, the trial court lacked personal jurisdiction over Durden in his individual
capacity, and the portions of its judgments that taxed costs of court, assessed sanctions, and
awarded appellate attorney’s fees against Durden were void. We sustain Durden’s first issue.
OTHER ISSUES MOOT
In two more issues, Durden challenges the same portions of the trial court’s judgments on
other grounds. Because we have already concluded that those portions were void for want of
personal jurisdiction, we need not address Durden’s additional challenges to the same portions.
CONCLUSION
On remand, Durden argues the trial court lacked personal jurisdiction over him in his
individual capacity, and those portions of its judgments against him individually are void.
We agree; there is no evidence of proper citation and service on Durden individually, he
did not accept or waive service, and his actions did not constitute a general appearance.
Accordingly, the trial court never obtained personal jurisdiction over Durden in his individual
capacity, and the portions of its judgments that tax costs of court, assess sanctions, and award
appellate attorney’s fees against Durden individually are void.
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We vacate those portions of the judgments. The other portions of the judgments, as
previously affirmed by this court and the supreme court, remain in effect.
Patricia O. Alvarez, Justice
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