IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00295-CV

Ray M. Bowen, William Kibler,

John Koldus, III, J. Malon Southerland,

Russell W. Thompson, Zack Coapland,

Major General M.T. Hopgood, Jr., Kevin

Jackson, Donald Johnson, Michael

David Krenz, James Reynolds, and Robert

Harry Stiteler, Jr.,

                                                                                    Appellants

 v.

John Andrew Comstock, Dixie Ann

Comstock, Jacquelynn Kay Self,

Individually and as Administratrix

of the Estate of Jerry Self, Deceased,

Andrea Heard, Individually, Kathy

McClain, Individually and as

Administratrix of the Estate of Bryan

McClain, Deceased, PHIL R. McCLAIN,

INDIVIDUALLY, DOMINIC BRAUS, NANCY

BRAUS, MATTHEW ROBBINS, GREGORY

ANTHONY POWELL, INDIVIDUALLY AND AS

ADMINISTRATOR OF THE ESTATE OF CHAD A.

POWELL, DECEASED, LESLIE HEARD, AND

BEVERLY JILL POWELL, INDIVIDUALLY

                                                                                    Appellees

From the 361st District Court

Brazos County, Texas

Trial Court No. 03-001246-CV361

Memorandum opinion

        Appellees sued Appellants, employees of Texas A&M University.  Appellants appeal the overruling of their pleas to the jurisdiction.  We affirm.

        In Appellants’ issue, they contend that the trial court erred in overruling their pleas to the jurisdiction, which pleas were premised upon sovereign immunity.  Appellants argue that Appellees brought suit against Appellants in Appellants’ official capacities, and thus that Appellees’ suits are barred by sovereign immunity. Appellees argue that they brought suits against Appellants in Appellants’ individual capacities, and thus that sovereign immunity does not bar those suits.^[1]

        “Capacity is a party’s legal authority to go into court to prosecute or defend a suit.”  R & R White Family Ltd. P’ship v. Jones, 182 S.W.3d 454, 457 (Tex. App.—Texarkana 2006, no pet.).  In order “to impose liability on a party, a plaintiff must sue the party in the capacity from which that plaintiff seeks to recover.”  Barcroft v. County of Fannin, 118 S.W.3d 922, 927 (Tex. App.—Texarkana 2003, pet. denied); see Morgan v. City of Alvin, 175 S.W.3d 408, 414 n.1 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  A plaintiff may choose to sue governmental-employee defendants individually, that is, “personally, in their official capacity, or both.”  Kentucky v. Graham,  473 U.S. 159, 167 n.14 (1985); accord Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—Austin 2007, no pet.); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 460 (Tex. App.—Tyler 1999, pet. denied); see Harris County v. Sykes, 136 S.W.3d 635, 637 (Tex. 2004); Wilson v. TDCJ-ID, 107 S.W.3d 90, 91 (Tex. App.—Waco 2003, no pet.).   

        “[A] suit against a governmental employee in his individual capacity seeks to impose personal liability on the individual.”  Cloud, 228 S.W.3d at 333; see Graham, 473 U.S. at 165 & n.10; Meroney v. City of Colleyville, 200 S.W.3d 707, 713 (Tex. App.—Fort Worth 2006, pet. granted, judgm’t vacated w.r.m.); Jackson v. Stinnett, 881 S.W.2d 498, 500 (Tex. App.—El Paso 1994, no writ).  “A victory in” an individual-capacity or “personal capacity suit is a victory against the individual government official . . . .”  Harris County v. Walsweer, 930 S.W.2d 659, 665 (Tex. App.—Houston [1st Dist.] 1996, writ denied).  “[A]n award of damages against an official in his personal capacity can be executed only against the official’s personal assets . . . .”  Graham at 166; accord Schauer v. Morgan, 175 S.W.3d 397, 405 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Winograd v. Clear Lake City Water Auth., 811 S.W.2d 147, 162 (Tex. App.—Houston [1st Dist.] 1991, writ denied).   

        “Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”  Graham, 473 U.S. at 165 (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)); accord Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007); Schauer, 175 S.W.3d at 405; Winograd, 811 S.W.2d at 161.  “[A] suit filed against an employee in an official capacity is an attempt to impose liability on the State and therefore the suit is in actuality against the governmental unit.”  Tex. Parks & Wildlife Dep’t v. E.E. Lowrey Realty, Ltd., 155 S.W.3d 456, 458 (Tex. App.—Waco 2004), rev’d on other grounds, 235 S.W.3d 692 (Tex. 2007) (per curiam); accord Koseoglu at 844; Cloud, 228 S.W.3d at 333; De Santiago v. W. Tex. Cmty. Supervision & Corr. Dep’t, 203 S.W.3d 387, 399 (Tex. App.—El Paso 2006, no pet.); Winograd at 161-62.  An official-capacity suit “is not a suit against the official personally, for the real party in interest is the entity.”  Graham at 166; Koseoglu at 844; accord Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El Paso 1993), writ dism’d w.o.j., 907 S.W.2d 443 (Tex. 1995) (per curiam).  “[A] plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.”  Graham at 166; Walsweer, 930 S.W.2d at 665. 

        Also, “[t]he capacity in which the individual is sued affects the defenses to liability that may be raised.”  Cloud, 228 S.W.3d at 333.  “The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the” sovereign “entity, qua entity, may possess, such as the Eleventh Amendment.”  Graham, 473 U.S. at 167; see U.S. Const. amend. XI.  Further, “[i]f an individual is sued in his official capacity, the employee may raise any defense that would be available to his employer, including the defense of sovereign immunity.”  Cloud at 333; accord E.E. Lowry, 155 S.W.3d at 458.  “When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses, such as” absolute or qualified official immunity.^[2]  Graham at 166-67.  “Individuals sued in their individual capacity, however, may not rely on the defense of sovereign immunity . . . .”  Cloud at 333; accord Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex. App.—Corpus Christi 2002, no pet.); Jackson, 881 S.W.2d at 500; see Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex. App.—Houston [14th Dist.] 2005, no pet.).     

        Appellants argue that Appellees brought suit against Appellants in Appellants’ official capacities, and thus that the suits are barred by sovereign immunity.  Appellants argue that in alleging only acts done within the course and scope of Appellants’ employment Appellees sued Appellants in Appellants’ official capacities. 

        Appellees argue that their petitions expressly brought claims against Appellants in Appellants’ “individual capacities.”  Appellees argue that a governmental employee sued in the defendant’s individual capacity may be liable for acts done in the course and scope of the defendant’s employment.  “A government employee may act within the scope of his employment, but not be protected by immunity.”  Harris County v. Gibbons, 150 S.W.3d 877, 887 (Tex. App.—Houston [14th Dist.] 2004, no pet.).  Appellees point, by comparison, to official immunity.  “If a government employee acts within the scope of his employment in the performance of a discretionary duty and acts in good faith, he is entitled to official immunity even though his acts are negligent, or even illegal.”  Tex. State Technical Coll. v. Cressman, 172 S.W.3d 61, 66 (Tex. App.—Waco 2005, pet. denied) (quoting Johnson v. Campbell, 142 S.W.3d 592, 594 (Tex. App.—Texarkana 2004, pet. denied)) (emphasis in Tex. State Technical Coll.); accord Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422 (Tex. 2004); Conklin v. Garrett, 179 S.W.3d 676, 680-81 (Tex. App.—Tyler 2005, no pet.).  Thus, although doing an act in the course and scope of employment, a government employee sued in his or her official capacity may nonetheless be liable, if the act is not discretionary or not done in good faith.  E.g., City of Lancaster v. Chambers, 883 S.W.2d 650, 656-58 (Tex. 1994) (remanded on good faith); Los Fresnos Consol. Indep. Sch. Dist. v. Southworth, 156 S.W.3d 910, 917 (Tex. App.—Corpus Christi 2005, pet. denied) (no official immunity where duties breached not discretionary); Harris County v. Gibbons, 150 S.W.3d at 886-87 (same); Garza v. Smith, 860 S.W.2d 631, 634 (Tex. App.—Corpus Christi 1993, no writ) (no official immunity where fact issue as to good faith); Garza v. Salvatierra, 846 S.W.2d 17, 21-23 (Tex. App.—San Antonio 1992, writ dism’d w.o.j.) (no official immunity where duties breached not discretionary).

        Appellants argue that we must “look beyond the capacity in which the [Appellees] have sued, in order to ascertain the true nature of their claim.”  (Reply Br. at 7 (citing Pickell v. Brooks, 846 S.W.2d 421, 424 (Tex. App.—Austin 1992, writ denied); Ferguson, 97 S.W.3d 205).)  The cases cited by Appellants are distinguishable.  In Pickell, the style of the petition indicated that Pickell sued Brooks in Brooks’s official and individual capacities, but the body of the petition stated claims only against the State “by and through . . . Brooks.”  Pickell, 846 S.W.2d at 424; see also Spellmon v. Tex. Dep’t of Crim. Justice, No. 14-96-00237-CV, 1997 Tex. App. LEXIS 1205, at *8-*9 (Tex. App.—Houston [14th Dist.] Mar. 13, 1997, no writ) (not designated for publication).  The court held that Pickell’s allegations thus stated a claim against Brooks only in Brooks’s official capacity.  Pickell at 424.  The bodies of Appellees’ petitions clearly state claims against Appellants in Appellants’ individual capacities.  In Nueces County v. Ferguson, “Ferguson did not explicitly state in his petition whether his claims against Larry Olivarez were brought against Olivarez in an official or individual capacity.”  Ferguson at 215.  The court held, “When a petition fails to specify the capacity in which a person is sued, we will look at the ‘course of the proceedings’ to determine the nature of the liability the plaintiff seeks to impose.”  Id. (quoting Graham, 473 U.S. at 166 n.14) (internal footnote omitted); accord Johnson v. Tims, No. 10-05-00006-CV, 2005 Tex. App. LEXIS 5053, at *5 (Tex. App.—Waco June 29, 2005, pet. denied) (mem. op.) (quoting Ferguson at 215).  Appellees’ petitions clearly specify that they bring claims against Appellants in Appellants’ individual capacities.   

        The trial court did not err in concluding that sovereign immunity did not bar Appellees’ suits against Appellants in Appellants’ individual capacities, and thus in overruling Appellants’ pleas to the jurisdiction.^[3]  We overrule Appellants’ issue.

        Having overruled Appellants’ sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

        (Justice Vance dissenting)

Order affirmed

Opinion delivered and filed May 28, 2008

[CV06]

---

          [1] This case is not governed by Texas Civil Practice and Remedies Code Section 101.106, as amended 2003, which concerns the election of remedies between suits against governmental units and governmental-unit employees.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a)-(b) (Vernon 2005); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 11.05, 2003 Tex. Gen. Laws 847, 886 (codified at Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005)); id. § 23.02(d), 2003 Tex. Gen. Laws at 899; 2003 Tex. Gen. Laws at 899 (“applies only to an action filed on or after” Sept. 1, 2003).  Appellants filed their suits in 2002 and early 2003.

          [2] Official immunity is an affirmative defense, which is not properly raised in a plea to the jurisdiction. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 162-63 (Tex. 2004); accord Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); San Antonio State Hosp. v. Lopez, 82 S.W.3d 566, 568 (Tex. App.—San Antonio 2002, pet. denied).  “[A]n official sued in his individual capacity would assert official immunity as a defense to personal monetary liability, which is well suited for resolution in a motion for summary judgment.”  Koseoglu, 233 S.W.3d at 843 (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)).  Appellants complain only of the overruling of their plea to the jurisdiction premised on sovereign immunity.

          [3] Appellants also contend that Appellees’ suit against Appellants in Appellants’ individual capacities is barred by sovereign immunity as a suit against the State because, Appellants argue, the State has an obligation to defend and indemnify Appellants.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 104.001-104.009 (Vernon 2005).  The one case cited by Appellants for that proposition is distinguishable, since it concerns a suit against defendants in the defendants’ official capacities.  See McCartney v. May, 50 S.W.3d 599, 604-606 (Tex. App.—Amarillo 2001, no pet.).