John M. Donohue, Owner 2005 Dodge HD 2500 Truck VIN 3D7KS28C2560708438 TXLP 86ZZF3 v. Daniel R. Butts, Bandera County Sheriff J.J. Martinez, Deputy Deputy John Doe 1 Deputy John Doe 2 Deputy John Doe 3, Individually and in Their Official Capacity

ACCEPTED
04-14-00674-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/18/2015 5:41:22 PM
KEITH HOTTLE
CLERK
NO. 04-14-00674-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE
SAN ANTONIO, TEXAS
FOURTH DISTRICT OF TEXAS
03/18/2015 5:41:22 PM
SAN ANTONIO, TEXAS
KEITH E. HOTTLE
Clerk
JOHN M. DONOHUE,
Appellant,
v.
BANDERA COUNTY SHERIFF’S DEPARTMENT; DANIEL R. BUTTS, SHERIFF;
J.J. MARTINEZ, DEPUTY; DEPUTY JOHN JOE #1; DEPUTY JOHN DOE #2;
AND DEPUTY JOHN DOE #3, INDIVIDUALLY, JOINTLY, SEVERALLY
AND IN THEIR OFFICIAL CAPACITY,
Appellees.
On Appeal From the 198th District Court of Bandera County, Texas
Trial Court Cause No. CV-14-180
The Honorable M. Rex Emerson, Judge Presiding
BRIEF OF APPELLEES
MICHAEL SHAUNESSY
State Bar No. 18134550
mshaunessy@mcginnislaw.com
ERIC JOHNSTON
State Bar No. 24070009
ejohnston@mcginnislaw.com
MCGINNIS LOCHRIDGE, LLP
600 Congress Avenue, Suite 2100
Austin, Texas 78701
512.495.6000 (telephone)
512.505.6364 (telecopier)
Attorneys for Appellees
IDENTITY OF PARTIES AND COUNSEL
A complete list of all parties to trial court’s judgment, together with the
names and addresses of all trial and appellate counsel, appears below.
Appellant: John M. Donohue
Trial and Appellant Counsel for Appellant: John M. Donohue, Pro Se
TDCJ #1895073
Duncan Unit
1502 South 1st Street
Diboll, Texas 75941
Appellees: Bandera County Sheriff’s
Department; Daniel R. Butts,
Sheriff; J.J. Martinez, Deputy;
Deputy John Joe #1; Deputy John
Doe #2; and Deputy John Doe #3,
Individually, Jointly, Severally
and In Their Official Capacity
Trial and Appellant Counsel for Appellees: MICHAEL SHAUNESSY
State Bar No. 18134550
mshaunessy@mcginnislaw.com
ERIC JOHNSTON
State Bar No. 24070009
ejohnston@mcginnislaw.com
MCGINNIS LOCHRIDGE, LLP
600 Congress Avenue, Suite 2100
Austin, Texas 78701
512.495.6000 (telephone)
512.505.6364 (telecopier)
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES ................................................................................... iv
RECORD REFERENCES .........................................................................................1
STATEMENT OF THE CASE ..................................................................................1
REQUEST FOR ORAL ARGUMENT .....................................................................1
ISSUES PRESENTED...............................................................................................2
STATEMENT OF FACTS ........................................................................................2
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................4
I. Standard of Review ............................................................................... 4
II. Appellant Files suit Against Bandera County, Not the
Officer in their Individual Capacities .................................................... 6
III. Immunity ...............................................................................................7
A. Bandera County is Protected by the Doctrine of
Governmental Immunity and, thus, Enjoys
Immunity from Suit ........................................................................ 7
B. The Component Elements of Sovereign Immunity ........................ 9
C. The TTCA does not Waive Immunity from Suit ..........................10
iii
D. No Waiver Exists to Recover Damage to Appellant's
Truck .............................................................................................13
IV. Appellant has Filed a Civil Suite ........................................................13
V. The Court Correctly Denied Appellant's Motion to
Release Information, Because No Possible Amendment
Could Cure The Jurisdictional Defect .................................................14
PRAYER ..................................................................................................................15
CERTIFICATE OF SERVICE ................................................................................16
CERTIFICATE OF COMPLIANCE .......................................................................17
iv
TABLE OF AUTHORITIES
Cases
Alexander v. Walker,
435 S.W.3d 789 (Tex. 2014) ...........................................................................6
Ben Bolt Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political
Subdivisions Prop. Cas. Self Ins. Fund,
212 S.W.3d 320 (Tex. 2006) ........................................................................... 8
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) ............................................................................. 9
Catalina Dev., Inc. v. County of El Paso,
121 S.W.3d 704 (Tex. 2003) ........................................................................... 9
City of Canyon v. McBroom,
121 S.W.3d 410 (Tex. App.–Amarillo 2003, no pet. h.) ................................. 5
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ........................................................................... 8
City of Houston v. Arney,
680 S.W.2d 867 (Tex. App.–Houston [1st Dist.] 1984, no writ) .................. 10
City of Houston v. Williams,
353 S.W.3d 128 (Tex. 2011) ........................................................................... 8
City of Weslaco v. Cantu,
No. 13-03-361-CV, 2004 WL 210790 (Tex. App.–Corpus Christi,
Feb. 5, 2004, no pet.) .......................................................................................5
County of Cameron v. Brown,
80 S.W.3d 549 (Tex. 2002) ............................................................................. 5
Dallas Area Rapid Transit v. Whitley,
104 S.W.3d 540 (Tex. 2003) ...........................................................................5
Federal Sign v. Texas Southern University,
951 S.W.2d 401 (Tex. 1997) ........................................................................... 9
v
Forbes v. Lanzl,
9 S.W.3d 895 (Tex. App.–Austin 2000, pet. denied) ....................................11
Gen. Servs. Comm'n v. Little-Tex Installation Co.,
39 S.W.3d 591 (Tex. 2001) ...........................................................................15
Goodman v. Harris County,
571 F.3d 388(5th Cir. 2009) ..........................................................................12
Hardin Cty. Community Supervision and Corrections Dep't v. Sullivan,
106 S.W.3d 186 (Tex. App.–Austin 2003, pet. denied) .................................. 5
Harris Cty. v. Cabazos,
177 S.W.3d 105 (Tex. App.–Houston [1st Dist.] 2005, no pet.).............12, 13
Harris Cty. v. Sykes,
136 S.W.3d 635 (Tex. 2004) .........................................................................14
Harris Cty. Hosp. Dist. v. Tomball Reg'l Hosp.,
283 S.W.3d 838 (Tex. 2009) ........................................................................... 9
Heigel v. Wichita County,
84 Tex. 392, 19 S.W. 562 (1892) .................................................................... 7
Leatherwood v. Prairie View A&M Univ.,
No. 01-02-61334-CV, 2004 WL 253275 ........................................................ 5
Lowe v. Tex. Tech Univ.,
540 S.W.2d 297 (Tex. 1976) ........................................................................... 7
Morris v. Copeland,
944 S.W.2d 696 (Tex. App.–Corpus Christi 1997, no writ) .........................12
Rolling Plains Groundwater Conservation Dist. v. City of Aspermont,
353 S.W.3d 756(Tex. 2011) ........................................................................7, 8
Rusk State Hospital v. Black,
392 S.W.3d 88 (Tex 2012) .............................................................................. 9
Smith v. Davis,
999 S.W.2d 409 (Tex. App.–Dallas 1999, no pet.) ......................................... 7
vi
State v. Lueck,
290 S.W.3d 876 (Tex. 2009) ...........................................................................9
Sw. Bell Tel., L. P. v. Harris County Toll Road Auth.,
282 S.W.3d 59 (Tex. 2009) .............................................................................8
Tex. A&M Univ. Sys v. Koseoglu,
233 S.W.3d 835 (Tex. 2007) .........................................................................14
Tex. Ass'n of Bus. v. Tex. Air Control,
852 S.W.2d 440 (Tex. 1993) ...................................................................4, 5, 6
Tex. Bay Cherry Hill L.P. v. City of Fort Worth,
257 S.W.3d 379 (Tex.App.–Fort Worth 2008, no pet.) .................................. 6
Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc.,
145 S.W.3d 170 (Tex. 2004) ........................................................................... 8
Tex. Dep't of Transp. v. Jones,
8 S.W.3d 636 (Tex. 1999) ...............................................................................9
Tex. Dep't of Transp. v. Ramirez,
74 S.W.3d 864 (Tex 2002) ..............................................................................5
Tex. Dep't of Transp. v. Sefzik,
2011 WL 5041969 (Tex. Oct. 21, 2011) ......................................................... 8
Tex. Home Mgmt. v. Peavy,
89 S.W.3d 30 (Tex. 2002) ............................................................................... 8
Texas Attorney General's Office v. Ngakoue,
2013 WL 4608867 (Tex. 2013) ....................................................................... 6
Texas Dep't Pub. Safety v. Petta,
44 S.W.3d 575 (Tex. 2001) .....................................................................12, 13
Tex. Natural Resource Conservation Com'n v. IT Davy,
74 S.W.3d 849 (Tex. 2002) .......................................................................9, 15
Univ. of Tex. at Austin v. Hayes,
327 S.W.3d 113 (Tex. 2010) .........................................................................10
vii
Wal-mart Stores v. Rodriguez,
92 S.W.3d 502 (Tex. 2002) ...........................................................................11
Wal–Mart Stores, Inc. v. Odem,
929 S.W.2d 513 (Tex. App.–San Antonio 1996, pet. denied) ......................11
Wichita Falls State Hosp.,
106 S.W.3d at 692 .......................................................................................8, 9
Statutes
TEX. CIV. PRAC. & REM. CODE §§ 101.021(1)-(2), 101.022 ................................10
TEX. CIV. PRAC. & REM. CODE §101.021 .......................................................10, 13
TEX. CIV. PRAC. & REM. CODE §101.057 .............................................................12
TEX. CIV. PRAC. & REM. CODE §101.106(a)........................................................... 7
TEX. CIV. PRAC. & REM. CODE §101.106(e)........................................................... 6
TEX. CODE CRIM. PROC. Art. 2.01-2.021 ..............................................................14
TEX. CODE CRIM. PROC. Art. 3.02 ........................................................................14
TEX. PENAL CODE § 22.01 ....................................................................................11
Rules
Texas Rule of Appellate Procedure 9.4(i)(2) .......................................................17
viii
RECORD REFERENCES
Appellees will make use of the following abbreviations in their Brief:
Clerk’s Record CR page
Reporter’s Record RR page
Appellant’s Brief Brief page
STATEMENT OF THE CASE
Description: Suit for damages against governmental
entity elected officials and employees
based on intentional torts in the form of
personal injuries suffered during arrest.
Trial Court Judge: The Honorable M. Rex Emerson
Trial Court: 198th Judicial District Court, Bandera
County, Texas
Trial Court Disposition: Final Judgment
Appellant: John M. Donohue
Appellees: Bandera County Sheriff’s Department;
Daniel R. Butts, Sheriff; J.J. Martinez,
Deputy; Deputy John Joe #1; Deputy
John Doe #2; and Deputy John Doe #3,
Individually, Jointly, Severally and In
Their Official Capacity
Action for Which Relief is Sought: Review of district court’s entry of final
judgment granting Appellees’ plea to
the jurisdiction and dismissing the suit.
REQUEST FOR ORAL ARGUMENT
Appellees believe that oral argument is unnecessary because the issues
presented to this Court may be clearly decided through briefing and reliance on
longstanding legal precedence. If the Court decides to grant oral argument, then
Appellees request permission to participate.
1
ISSUES PRESENTED
Appellant points out five errors in the trial court’s order on Appellees’ Plea
to the Jurisdiction. Although all of Appellant’s points of error are addressed in the
following Brief, Appellees believe that the only pertinent issues are as follows:
1. Did Bandera County have immunity from suit thereby denying the district
court of jurisdiction over Appellant’s claims?
2. Was it proper for the trial court to deny Appellant’s Motion to Release
Information?
STATEMENT OF FACTS
On June 4, 2014, Plaintiff/Appellant John Michael Donohue (“Appellant”)
filed with the 198th Judicial District Court of Bandera County, Texas an Original
Notice of Assault and False Imprisonment (the “Notice of Intentional Torts”). CR
6-13. Appellant names Sheriff Daniel R. Butts (“Sheriff Butts”) and two John Does
as defendants. Appellant specifically states in his pleading that he is suing all
defendants in their official and individual capacities. CR 6. Appellant alleges that
he suffered personal injuries during his arrest by the Bandera County Sheriff’s
Office (“BCSO”). CR 8. Appellant states in the Notice of Intentional Torts that he
is bringing claims under Chapter 20 and 22 of the Texas Penal Code. CR 8.
Appellant alleges that Sheriff Butts, through vicarious liability, committed false
imprisonment, assault, and aggravated assault. CR 9. Appellant also notes in the
2
Notice of Intentional Torts that he is seeking compensatory and punitive damages.
CR 9.
Then, on June 11, 2014, Appellant filed his Original Notice of Complaints
and Claims for Relief (“Notice of Claims”). CR 21-27. Appellant names as
defendants, Sheriff Butts, Deputy J.J. Martinez (“Deputy Martinez”) and three
John Does as defendants. CR 21. In this pleading, Appellant notes that he is suing
all defendants in their individual and official capacities. CR 21. Appellant alleges
that he is seeking respondeat superior liability of Sheriff Butts for the actions of
BCSO deputies firing shots at Appellant’s truck. CR 23. Appellant does not allege
that Sheriff Butts was involved in his arrest. CR 6-11, 21-27. Through the Notice
of Claims, Appellant seeks compensatory and punitive damages and restitution in
an amount equal to the value of his truck. CR 24. Sheriff Butts and Deputy
Martinez were served with both the Notice of Intentional Torts and the Notice of
Claims. CR 6-11, 45, 47.
Only July 7, 2014, Appellees filed their Plea to the Jurisdiction, Plea in
Abatement, and Original Answer. CR 87-93. Appellees asserted that the trial court
lacked subject matter jurisdiction, because Appellees enjoy immunity from suit.
CR 87. After a hearing in which Appellant appeared via telephone, the trial court
granted Appellees’ Plea to the Jurisdiction. RR 2, 13-14. On August 29, 2014, the
trial court signed an order dismissing Appellant’s claims with prejudice. CR 110.
3
SUMMARY OF THE ARGUMENT
Bandera County is a governmental entity that is protected by governmental
immunity, a component of which is immunity from suit. In order to bring a lawsuit
against a governmental entity, a plaintiff must be able to plead a clear and
unequivocal waiver of immunity from suit created by the legislature. Appellant’s
claims, all of which are based on intentional torts, are not subject to any waiver of
immunity. Rather, the Texas Tort Claims Act (“TTCA”) clearly provides that
claims based on intentional torts are expressly barred. Because Appellant does not
and cannot plead a waiver of immunity from suit, the trial court did not have
subject matter jurisdiction over Bandera County. The trial court correctly granted
Bandera County’s plea to the jurisdiction and denied Appellant’s Motion to
Release Information.
ARGUMENT
I. Standard of Review.
While a court must construe a plaintiff’s pleading to determine the intent of
the pleading, a court cannot liberally construe the question of law regarding
whether there is a waiver of immunity from suit. When a plea to the jurisdiction is
based on plaintiff’s pleadings, as opposed to plaintiff’s ability to prove
jurisdictional facts, the trial court and court of appeal’s review is limited to the
four-corners of the plaintiff’s live pleading. Tex. Ass’n of Bus. v. Tex. Air Control,
4
852 S.W.2d 440, 446 (Tex. 1993). A plaintiff must affirmatively plead a valid
waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex.
2003). Courts must construe the pleadings in plaintiff’s favor and look to plaintiff’s
intent in determining if plaintiff plead facts that would have established a waiver of
immunity from suit. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.
2002); Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex 2002); Tex.
Ass’n of Bus., 852 S.W.2d at 446.
The plaintiff’s live pleading must demonstrate, by the facts alleged or
reference to statute or other provisions of law, that immunity from suit has been
waived. Leatherwood v. Prairie View A&M Univ., No. 01-02-61334-CV, 2004 WL
253275 (Tex. App.–Houston [1st Dist.], Feb. 12, 2004, no pet. h.); City of Weslaco
v. Cantu, No. 13-03-361-CV, 2004 WL 210790 (Tex. App.–Corpus Christi, Feb. 5,
2004, no pet.); City of Canyon v. McBroom, 121 S.W.3d 410 (Tex. App.–Amarillo
2003, no pet. h.); Hardin Cty. Community Supervision and Corrections Dep’t v.
Sullivan, 106 S.W.3d 186, 189 (Tex. App.–Austin 2003, pet. denied).
Appellant argues that the trial court should have allowed discovery and
considered whether he might prove facts that can establish jurisdiction. However,
when a plea to the jurisdiction challenges whether Appellant has plead a waiver of
immunity from suit, as in this case, the court’s review is limited to the pleadings
5
and the court does not consider what, if any, evidence might be offered at trial.
Tex. Ass’n of Bus, 852 S.W.2d at 446.
II. Appellant Files suit Against Bandera County, not the Officers in their
Individual Capacities.
Appellant argues that he has not brought suit against a governmental entity
but, rather, against the individual defendants in their personal capacities. Brief 4.
Appellant admits that he brings suit against all defendants in their official and
personal capacity. Brief 8. The Texas Civil Practice & Remedies Code finds that
Appellant, as a matter of law, sues all individuals in their official capacity.
Pursuant to Texas Civil Practices & Remedies Code §101.106(e) “[i]f 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.” TEX. CIV. PRAC. & REM. CODE §101.106(e). Section 101.106
applies regardless of whether an employee is sued in his official capacity or
individual capacity. See, e.g., Tex. Bay Cherry Hill L.P. v. City of Fort Worth, 257
S.W.3d 379, 401 (Tex.App.–Fort Worth 2008, no pet.) ([a] “suit under the [TTCA]
against a governmental unit bars a same-subject-matter suit against an employee in
both the employee’s official and individual capacities”); see also Alexander v.
Walker, 435 S.W.3d 789 (Tex. 2014) (if substance of plaintiff’s claim is predicated
on actions in course or scope of responsibilities as official or employee, then claim
is against the entity and not the individuals); Texas Attorney General’s Office v.
6
Ngakoue, 2013 WL 4608867, at *6-7 (Tex. 2013). Any suit brought against Sheriff
Butts or his deputies in their official capacities is a suit against the governmental
entity–Bandera County. See Smith v. Davis, 999 S.W.2d 409, 416 (Tex. App.–
Dallas 1999, no pet.). Because Appellant stated he was suing the individual
defendants in their official capacity and later sued them in their official and
individual capacities, by operation of law, he makes an irrevocable election to sue
Bandera County and is barred from pursuing suit against the individuals. See TEX.
CIV. PRAC. & REM. CODE §101.106(a).
III. Immunity
A. Bandera County is Protected by the Doctrine of Governmental
Immunity and, thus, Enjoys Immunity from Suit
Bandera County enjoys governmental immunity, the name for sovereign
immunity applicable to local governmental entities. Lowe v. Tex. Tech Univ., 540
S.W.2d 297 (Tex. 1976) (sovereign immunity extends to the political subdivisions
of the state, including counties); see also Heigel v. Wichita County, 84 Tex. 392,
19 S.W. 562, 563 (1892); Rolling Plains Groundwater Conservation Dist. v. City
of Aspermont, 353 S.W.3d 756, 759 (Tex. 2011) (per curiam) (sovereign immunity,
as it applies to local governmental entities, is referred to as governmental
immunity). 1
1
While the technical name of the immunity enjoyed by local governmental entities is different,
governmental immunity offers counties and other local governmental entities the same degree of
7
In part, sovereign immunity serves the purpose of protecting tax revenues
from being spent on the costs of litigation and judgments, as opposed to their
intended purpose, which is the provision of governmental services.2 Ben
Bolt-Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political Subdivisions Prop. Cas.
Self Ins. Fund, 212 S.W.3d 320 (Tex. 2006); Tex. Dep’t of Transp. v. Sefzik, 2011
WL 5041969 (Tex. Oct. 21, 2011) *4; Rolling Plains Groundwater, 353 S.W.3d at
760; Wichita Falls State Hosp., 106 S.W.3d at 692. The purpose of sovereign
immunity “is pragmatic: to shield the public from the cost and consequences of
imprudent actions of their government.” Id. (internal quotation omitted); City of
Houston v. Williams, 353 S.W.3d 128, 131 (Tex. 2011). Subjecting governmental
entities to litigation and judgments will force governmental entities to take money
from other activities (providing police protection, building public improvements,
protection from suit as is afforded to state entities under sovereign immunity. Id.
(“[g]overnmental immunity, like the doctrine of sovereign immunity to which it is appurtenant,
involves two issues: whether the State has consented to suit and whether the State has accepted
liability”). For ease of reference, throughout this brief, sovereign immunity and governmental
immunity are collectively referred to as sovereign immunity.
2
Additionally, sovereign immunity precludes second guessing of certain governmental actions
and decisions. See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145
S.W.3d 170, 198 (Tex. 2004); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 371-73 &
n.6 (Tex. 2009) (litigation cannot be utilized “to control state action by imposing liability on the
State”) (italics in the original). Thus, policy level decisions, decisions regarding budgeting and
allocation of resources, decisions regarding the provision of certain services (fire, police, and
emergency services) and decisions regarding the design of public works cannot be the bases of
suit. Sw. Bell Tel., L. P. v. Harris County Toll Road Auth., 282 S.W.3d 59, 68 (Tex. 2009). “As
we have often noted, the Legislature is best positioned to waive or abrogate sovereign immunity
because it allows the Legislature to protect its policymaking function.” Id. (internal quotation
and citation omitted). See Tex. Home Mgmt. v. Peavy, 89 S.W.3d 30, 43 (Tex. 2002); TEX. CIV.
PRAC. & REM. CODE § 101.021.
8
and providing social services) and expend those funds to defend lawsuits and pay
judgments. Wichita Falls State Hosp., 106 S.W.3d at 698; Catalina Dev., Inc. v.
County of El Paso, 121 S.W.3d 704 (Tex. 2003); Rusk State Hospital v. Black, 392
S.W.3d 88 (Tex 2012).
B. The Component Elements of Sovereign Immunity
Sovereign immunity embraces two principals: immunity from suit and
immunity from liability. First, the State retains immunity from suit
without legislative consent, even if the State’s liability is not disputed.
Second, the State retains immunity from liability though the
Legislature has granted consent to the suit.
Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997)
(citations omitted); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)
(“[i]mmunity from liability and immunity from suit are two distinct principles”).
The Texas Supreme Court went on to explain the effect of immunity from suit.
Immunity from suit bars a suit against the State unless the State expressly
gives its consent to the suit. Federal Sign, 951 at 405; State v. Lueck, 290 S.W.3d
876 (Tex. 2009) (“[i]mmunity from suit is a jurisdictional question of whether the
State has expressly consented to suit.…”); Harris Cty. Hosp. Dist. v. Tomball Reg’l
Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Because immunity from suit challenges a
court’s jurisdiction, it is properly raised by a plea to the jurisdiction. Jones, 8
S.W.3d at 637; see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
9
2000). Whether a court has subject matter jurisdiction is a question of law. Tex.
Natural Resource Conservation Com'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002).
Accordingly, Appellant has the burden of alleging facts that establish a
waiver of immunity from suit. See City of Houston v. Arney, 680 S.W.2d 867 (Tex.
App.–Houston [1st Dist.] 1984, no writ). But, Appellant did not allege any waiver
of immunity in his Original Petition (CR 6-11, 21-27), and the Trial Court
correctly determined that no waiver exists under the circumstances. CR 110. On
this basis alone, Appellant’s claims were properly dismissed.
C. The TTCA does not Waive Immunity from Suit
Under the TTCA, governmental entities, such as Bandera County, are
immune from tort suits, except for the limited waiver of immunity provided for in
the TTCA. TEX. CIV. PRAC. & REM. CODE §101.021. The TTCA waives immunity
from suit for tort claims in narrowly-defined circumstances. See TEX. CIV. PRAC. &
REM. CODE §101.021. Those narrow exceptions include suits against governmental
units for personal injuries caused by: (1) the negligent use of publicly owned
motor-driven vehicles or equipment; (2) a condition or use of tangible personal or
real property; and (3) premise defect or a condition of real property. TEX. CIV.
PRAC. & REM. CODE §§ 101.021(1)-(2), 101.022. To establish the trial court’s
jurisdiction, the plaintiff must allege facts demonstrating jurisdiction, and the court
is to construe the pleadings in plaintiff’s favor. Univ. of Tex. at Austin v. Hayes,
10
327 S.W.3d 113, 116 (Tex. 2010). Appellant’s pleadings establish that his claims
do not arise from the use of a publicly owned automobile, nor do they arise from a
condition or use of tangible personal property, or from a premise defect or a
condition of real property. CR 6-11, 21-27.
Rather, Appellant’s claims arise from an alleged wrongful arrest made with
the use of allegedly excessive force and being held without probable cause. CR 6-
11, 21-27. Appellant alleges that he was subjected to intentional acts, specifically
that Bandera County’s actions amounted to assault, false imprisonment, and
destruction of personal property. CR 6-11, 21-27.
The elements of assault are the same in both civil and criminal cases. City of
Watauga v. Gordon 2014 WL 2535995 at *3 (Tex. 2014); Forbes v. Lanzl, 9
S.W.3d 895, 900 (Tex. App.–Austin 2000, pet. denied). A person commits an
assault by: (1) intentionally, knowingly, or recklessly causing bodily injury to
another; (2) intentionally or knowingly threatening another with imminent bodily
injury; or (3) intentionally or knowingly causing physical contact with another
when the person knows or should reasonably believe that the other will regard the
contact as offensive or provocative. TEX. PENAL CODE § 22.01; Forbes, 9 S.W.3d
at 900; Wal–Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 521 (Tex. App.–San
Antonio 1996, pet. denied). Additionally, the elements of false imprisonment also
include intent (i.e., that the defendant willfully detained the plaintiff). See Wal-mart
11
Stores v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). Additionally, the gravamen
of Appellant’s claim regarding his truck is that a BCSO deputy intentionally shot
his truck. CR 22; Brief 3.
The TTCA explicitly states that it does not apply to claims arising out of an
intentional tort by a governmental employee. City of Watauga, 2014 WL 2535995
at* 3; Goodman v. Harris County, 571 F.3d 388, 394 (5th Cir. 2009) (cert. denied
130 S. Ct. 1146); see also TEX. CIV. PRAC. & REM. CODE §101.057. “If a plaintiff
pleads facts which amount to an intentional tort, no matter if the claim is framed as
negligence, the claim generally is for an intentional tort and is barred by the
[TTCA].” Harris Cty. v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.–Houston [1st
Dist.] 2005, no pet.); see also Texas Dep’t Pub. Safety v. Petta, 44 S.W.3d 575,
580-81 (Tex. 2001) (DPS was immune from false-imprisonment claim against
police officer); Morris v. Copeland, 944 S.W.2d 696, 699 (Tex. App.–Corpus
Christi 1997, no writ) (county was immune from false imprisonment claim against
sheriff). Appellant’s allegations of assault, false imprisonment and destruction of
personal property fit squarely within Section 101.057’s exclusion of claims arising
out of intentional torts because the gravamen of his claims are allegations pf
intentional torts. See TEX. CIV. PRAC. & REM. CODE § 101.057; City of Watauga,
2014 WL 2535995, p. 3; Petta, 44 S.W.3d at 580; Cabazos, 177 S.W.3d at 111.
Specifically, Appellant’s allegations amount to intentional torts because they focus
12
on the conduct of the BCSO deputies in the firing of their pistols, and not on the
use of a government-owned vehicle, the condition or use of personal or real
property, or a premise defect as required by the TTCA. CR 6-11, 21-27. Petta, 44
S.W.3d at 580; Cabazos, 177 S.W.3d at 111. Accordingly, the trial court properly
granted Appellees’ Plea to the Jurisdiction because there is no waiver for
Appellant’s claims.
D. No Waiver Exists to Recover Damage to Appellant’s Truck.
Moreover, to the extent that Appellant seeks damages related to his truck,
Appellant absolutely cannot establish a waiver of immunity from suit. Under the
TTCA, property damage is only recoverable if the “property damage . . . arises
from the operation or use of a [government operated] motor-driven vehicle or
motor-driven equipment.” Tex. Civ. Prac. & Rem. Code §101.021. Appellant does
not allege that any damage to his truck was caused by the operation of a
government owned motor-driven vehicle/equipment. Rather, he alleges that the
damage was caused by the shots fired by BCSO deputies. CR 22. Accordingly,
Appellant cannot establish a waiver of immunity. Again, the trial court was correct
in granting the plea to the jurisdiction.
IV. Appellant has Filed a Civil Suit.
Appellant contends that it was wrong of the trial court to dismiss his case
because he was, in fact, seeking relief under the Texas Penal Code. Brief 4.
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Appellant can offer no authority to support his contention that he has standing to
bring suit under the Texas Penal Code. In fact, the Texas Code of Criminal
Procedure outlines that it is the duties of the district attorney, the county attorney,
or the Texas Attorney General to bring criminal actions on behalf of the State
under the Texas Penal Code. See TEX. CODE CRIM. PROC. Art. 2.01-2.021; see also
TEX. CODE CRIM. PROC. Art. 3.02 (“A criminal action is prosecuted in the name of
the State of Texas against the accused, and is conducted by some person acting
under the authority of the State, in accordance with its laws.”). Regardless of the
lack of authority, Appellant is seeking civil remedies of compensatory and punitive
damages. Thus, the pleadings he filed constitute a civil suit for money damages
and not an action brought pursuant to the Texas Penal Code. CR 9, 25.
V. The Court Correctly Denied Appellant’s Motion to Release
Information, Because No Possible Amendment Could Cure the
Jurisdictional Defect.
When dismissing based on immunity from suit, the trial court must consider
whether a plaintiff should have the opportunity to amend his pleadings to allege
facts establishing the existence of subject matter jurisdiction. See Harris Cnty. v.
Sykes, 136 S.W.3d 635, 639 (Tex. 2004). However, an opportunity to amend need
not be given when any such amendment would be futile. See Tex. A&M Univ. Sys.
v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). In Koseoglu, the Supreme Court
held that a party asserting a breach of contract claim against the state university
14
was not entitled to replead his case where no such repleading could avail the
litigant. Id., citing Gen. Servs. Comm’n v. Little-Tex Installation Co., 39 S.W.3d
591, 598 (Tex. 2001).
In this case, Appellant cannot plead any fact that would allege a waiver of
Bandera County’s immunity from suit. He asserts intentional torts that are
specifically excepted from any waiver of immunity in the TTCA. He does not
purport to show any statutory authorization for his claims. Because Appellant’s
claims cannot be saved through repleading, the trial court’s denial of the Motion to
Release Information was proper. Moreover, the trial court’s denial of the Motion to
Release Information is consistent with Texas jurisprudence holding that the
purpose of sovereign immunity is to preserve governmental resources. See IT–
Davy, 74 S.W.3d at 854 (noting that “[s]ubjecting the government to liability may
hamper governmental functions by shifting tax resources away from their intended
purposes toward defending lawsuits and paying judgments”).
PRAYER
Appellees Bandera County Sheriff’s Department; Daniel R. Butts, Sheriff;
J.J. Martinez, Deputy; Deputy John Joe #1; Deputy John Doe #2; and Deputy John
Doe #3, Individually, Jointly, Severally and In Their Official Capacity pray that
this Court affirm the final judgment of the trial court dismissing all of Appellant’s
claims for lack for jurisdiction.
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Respectfully submitted,
MCGINNIS LOCHRIDGE, LLP
600 Congress Avenue, Suite 2100
Austin, Texas 78701
512.495.6000 (telephone)
512.505.6364 (telecopier)
By: /s/ Eric A. Johnston
MICHAEL SHAUNESSY
State Bar No. 18134550
mshaunessy@mcginnislaw.com
ERIC A. JOHNSTON
State Bar No. 24070009
ejohnston@mcginnislaw.com
Attorneys for Appellees
CERTIFICATE OF SERVICE
I hereby certify that, on the 18th day of March, 2015, I electronically filed
the foregoing with the Clerk of the Court using the Texas Online eFiling for courts
system and provided a copy, via certified mail, return receipt requested, to the
following:
John M. Donohue, Pro Se
TDCJ #1895073
Duncan Unit
1502 South 1st Street
Diboll, Texas 75941
/s/ Eric A. Johnston
Michael Shaunessy
Eric A. Johnston
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CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this brief
contains 3,643 words, excluding the portions of the brief exempted by Rule
9.4(i)(l).
/s/ Michael Shaunessy
Michael Shaunessy
Eric Johnston
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