Roy Garcia v. Juan Guerra, Individually

NUMBER 13-21-00166-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROY GARCIA, Appellant,
v.
JUAN GUERRA, INDIVIDUALLY, Appellee.
On appeal from the 398th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Roy Garcia appeals the trial court’s judgment granting appellee Juan
Guerra’s motion to dismiss with prejudice under § 101.106(f) of the Texas Tort Claims
Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (providing for the dismissal
of a suit against an employee of a governmental unit based on conduct within the general
scope of that employee’s employment if the suit could have been brought against the
governmental unit). By two issues, which we have renumbered, Garcia argues dismissal
was improper because: (1) Guerra did not conclusively prove he was acting within the
course and scope of employment at the time he committed the tortious conduct, and (2)
Garcia did not file his suit under the TTCA against a governmental unit and an employee.
See generally TEX. CIV. PRAC. & REM. CODE ANN. § 101.106. We affirm.
I. BACKGROUND
Garcia was the former public works director for the City of Pharr (the City), and
Guerra was the City Manager. On April 1, 2017, Guerra sent Garcia a letter accusing
Garcia of “having impermissibly altered the City’s official budget spreadsheet” and
“tampering [with] a government document in violation of [§] 37.10 of the Texas Penal
Code.” See TEX. PENAL CODE ANN. § 37.10 (“Tampering With Governmental Record”).
Guerra terminated Garcia that same day.
On September 6, 2017, Garcia executed a charge of discrimination with the Texas
Workforce Commission (TWC), but TWC dismissed the claim.
On May 11, 2018, Garcia sued the City and Guerra, individually. Garcia sued the
City for unlawful employment discrimination under Chapter 21 of the Labor Code. See
generally TEX. LAB. CODE ANN. § 21.051. Garcia sued Guerra individually, asserting
slander per se and intentional infliction of emotional distress. According to Garcia’s
petition, Guerra accused Garcia of criminal acts and made those statements outside the
scope of Guerra’s employment, causing Garcia severe emotional distress. Garcia
attached his TWC charge of discrimination and TWC’s notice of dismissal.
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The City and Guerra filed a motion to dismiss, asserting Guerra should be
dismissed pursuant to § 101.106(e) and (f) of the Texas Civil Practice and Remedies
Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e), (f). According to the City,
Garcia’s allegations stem from Guerra’s findings and conclusions as a result of an
investigation Guerra performed in his role as City Manager. Garcia responded explaining
that § 101.106(e) did not apply because he did not file suit under the TTCA; rather, he
sued the City pursuant to the labor code. Additionally, he asserted § 101.106(f) was
inapplicable because Guerra was not acting within the scope of his employment when the
complained-of conduct occurred.
The City responded that dismissal was proper under § 101.106(f) because the
complained-of conduct was within the scope of Guerra’s employment.1 Garcia replied,
asserting that defaming a former employee was outside the scope of Guerra’s
employment, and Garcia attached a list of the City Manager’s powers and duties as set
forth in the City’s code of ordinances. The City responded and attached Garcia’s original
petition wherein Garcia alleged that Guerra “told other City employees that the reason
[Garcia] stopped working for the City was because [Garcia] had committed the criminal
act of tampering with governmental records.”
On October 26, 2020, the trial court held a hearing on the City’s and Guerra’s
1 Garcia filed suit against the City for unlawful discrimination pursuant to the Texas Labor Code.
See TEX. LAB. CODE ANN. § 21.051. The City conceded that dismissal under § 101.106(e) was improper
because Garcia did not file suit against the City under the TTCA, and the City amended its motion to
dismiss, removing § 101.106(e) as a ground for dismissal. Therefore, we do not address Garcia’s second
issue regarding whether dismissal was improper under § 101.106(e).
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motion to dismiss. The trial court granted the motion to dismiss, severed Garcia’s claims
of slander and intentional infliction of emotional distress, and dismissed with prejudice
Garcia’s suit against Guerra individually. Garcia now appeals.
II. APPLICABLE LAW AND STANDARD OF REVIEW
The TTCA includes a comprehensive election-of-remedies scheme that requires
plaintiffs to sue either the governmental unit or its employee individually, not both. See
id.; Univ. of Tex. Health Sci. Ctr. at Hous. v. Rios, 542 S.W.3d 530, 536–37 (Tex. 2017).
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 against
the governmental unit, the suit is considered to be against the employee in the employee’s
official capacity only. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). 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. See id.
Section 101.106(f) completely “foreclose[s] suit against a government employee in
his individual capacity if he was acting within the scope of his employment.” Franka v.
Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). An employee must establish the following
to be entitled to dismissal: (1) the employee was an employee of a governmental unit; (2)
the employee was acting within the general scope of his employment; and (3) the suit
could have been brought under the TTCA against the governmental unit. See id. “A
motion to dismiss filed by an employee of a governmental unit pursuant to [§] 101.106(f)
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is a challenge to the trial court’s subject-matter jurisdiction, which we review de novo.”
Fryday v. Michaelski, 541 S.W.3d 345, 348 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied); see Franka, 332 S.W.3d at 371 n.9 (explaining that a defendant moving for
dismissal pursuant to § 101.106(f) is asserting a claim of governmental immunity).
It is undisputed that Guerra was employed by the City at the time he made the
alleged statements, so he meets the first Franka prong, and Garcia does not challenge
the third prong. See Franka, 332 S.W.3d at 381. Garcia only challenges whether Guerra
was acting within the scope of employment when he made the alleged defamatory
remarks. Accordingly, we will determine whether Guerra proved that the complained-of
conduct was based on conduct within his scope of employment as City Manager. See
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka, 332 S.W.3d at 381.
III. SCOPE OF EMPLOYMENT
“Scope of employment” is defined as “the performance for a governmental unit of
the duties of an employee’s office or employment and includes being in or about the
performance of a task lawfully assigned to an employee by competent authority.” TEX.
CIV. PRAC. & REM. CODE ANN. § 101.001(5). “The scope-of-employment inquiry under [§]
101.106(f) focuses on whether the employee was doing his job, not the quality of the job
performance.” Garza v. Harrison, 574 S.W.3d 389, 399 (Tex. 2019) (“[T]he [TTCA]
focuses on ‘performance . . . of the duties of an employee’s office or employment,’ which
calls for an objective assessment of whether the employee was doing [his] job when [he]
committed an alleged tort, not [his] state of mind when [he] was doing it.”). “The scope-
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of-employment analysis, therefore, remains fundamentally objective: Is there a
connection between the employee’s job duties and the alleged tortious conduct?” Laverie
v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017) (citation omitted). “The answer may be
yes even if the employee performs negligently or is motivated by ulterior motives or
personal animus so long as the conduct itself was pursuant to [his] job responsibilities.”
Id. “An employee will of course sometimes have personal motives for performing [his] job
a particular way, and a statement made or an act done may simultaneously fulfill a job
responsibility while furthering an ulterior motive.” Id. at 755.
The fundamental inquiry therefore is not whether the employee did his job well or
poorly, or whether he did his job selfishly or altruistically, but simply whether he was doing
his job. Id. Conduct falls outside the scope of employment when it occurs “within an
independent course of conduct not intended by the employee to serve any purposes of
the employer.” Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014).
IV. DISCUSSION
Guerra averred that his statements were in response to an employment
investigation and such investigation was within his duties as City Manager. To support
his motion to dismiss, Guerra relied on the city manager’s job duties that Garcia attached
as evidence, Garcia’s previous and live pleadings, and Garcia’s TWC complaint.
As the chief administrative and executive officer of the City, the city manager’s job
duties included, among others, seeing that all laws are complied with, appointing all
department heads, removing any City employee, promulgating a personnel management
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system, evaluating all department heads, and directing and supervising all department
heads. Garcia presented no evidence to dispute the characterization of Guerra’s duties.
Instead, Garcia maintains that slandering a former employee was not within the scope of
the city manager’s duties.
Again, the relevant inquiry is whether there is “a connection between the
employee’s job duties and the alleged tortious conduct.” Laverie, 517 S.W.3d at 753; see
also Hopkins v. Strickland, No. 01-12-00315-CV, 2013 WL 1183302, at *3 (Tex. App.—
Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. op.) (“[A]n act may still be within the
scope of the employee’s duties even if the specific act that forms the basis of the civil suit
was wrongly or negligently performed, so long as the action was one related to the
performance of his job.”). The trial court could have found that Guerra’s statement
accusing Garcia of tampering with governmental records was within the scope of Guerra’s
duties in personnel management, seeing that all laws are complied with, evaluating all
department heads, or directing and supervising all department heads, as Guerra is
responsible for the efficient administration of all affairs within the City. See Laverie, 517
S.W.3d at 754; City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (“An
official acts within the scope of her authority if she is discharging the duties generally
assigned to her.”).
Furthermore, whether the statement was true or false or whether Guerra knew the
statement was true or false “invites partial litigation of the underlying defamation claim
itself.” Laverie, 517 S.W.3d at 753 (providing that the conduct can still be related to a job
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duty even if the employee performs negligently or is motivated by ulterior motives or
personal animus). “The function of the election-of-remedies provision, however, is not to
adjudicate the underlying tort claim but to quickly dismiss government employees when
the suit should be brought against their employer.” Id. Thus, even if Garcia’s allegations
are true, Guerra was fulfilling his job duties as City Manager in evaluating, directing, and
supervising all department heads and thereafter removing any City employee. See id.
(“Even if Laverie defamed Wetherbe, she did so while fulfilling her job duties.”).
Garcia further states Guerra allegedly made the statements after Garcia was
terminated, and such conduct does not fall within Guerra’s scope of employment as
Garcia was no longer a City employee. However, the complained-of statements were
made while Guerra was employed as City Manager, regardless of Garcia’s termination.2
“Conduct that serves any purpose of the employer is within the scope of employment
even if the conduct escalates beyond that assigned or permitted.” Fink v. Anderson, 477
S.W.3d 460, 465–66 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Even if Guerra made
the remarks after Garcia was terminated, Guerra’s comments regarding the results of his
investigation and the basis for terminating Garcia were made while Guerra was employed
as City Manager. See id. (“[I]ntentional torts have been held to involve conduct within a
governmental employee’s scope of employment when they take place while the employee
2 Guerra retired from his position as City Manager in October 2018. To the extent that Garcia
argues Guerra made the defamatory statements after Guerra retired from his position as City Manager and
the complained-of statements therefore cannot be made within the scope of Guerra’s employment, we
reject such argument. Garcia first sued Guerra complaining of the defamatory statement on May 11, 2018.
It is undisputed that Guerra was still employed and serving in his capacity as City Manager on such date.
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is engaged in conduct to further an interest of his employer and the tortious act is more
of an escalation of—rather than a deviation from—his job duties.”). Garcia states that
none of the city manager duties gave Guerra “authority to commit tortious conduct such
as slander per se or intentional infliction of emotional distress against and ex-employee.”
But the supreme court has rendered judgment for a governmental employee after
concluding that claims against him for intentional infliction of emotional distress and
conspiracy to intentionally inflict emotional distress were subject to dismissal under
§ 101.106(f). See Newman v. Obersteller, 960 S.W.2d 621, 622–23 (Tex. 1997). Simply
put, Guerra’s comments were not “an independent course of conduct” that failed to “serve
any purpose of [his] employer.” See Alexander, 435 S.W.3d at 792. Instead, explaining
the findings of the investigation and the resulting decision to terminate Garcia, then
serving as the public works director, were natural extensions of Guerra’s specific job
duties. Thus, we conclude the alleged statements Guerra made while City Manager
explaining the basis of Garcia’s termination served a purpose of employment. See id.
Because the TTCA “strongly favors dismissal of governmental employees,” we
conclude there is a connection between Guerra’s job duties as City Manager and the
alleged defamatory statement following Guerra’s investigation as it related to Guerra’s
termination of Garcia in his role as the public works director. See Laverie, 517 S.W.3d at
753; see also Melton v. Farrow, No. 03-13-00542-CV, 2015 WL 681491, at *3 (Tex.
App.—Austin Feb. 10, 2015, pet. denied) (mem. op.) (“Texas appellate courts have
consistently held that acts may still be within the scope of the employee’s duties even if
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the specific conduct that forms the basis of the suit was wrongly or negligently performed
or driven by personal animus.”). Accordingly, the trial court did not err in granting Guerra’s
motion to dismiss pursuant to § 101.106(f). Anderson v. Bessman, 365 S.W.3d 119, 124
(Tex. App.—Houston [14th Dist.] 2011, no pet.). We overrule Garcia’s first issue.
V. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Delivered and filed on the
23rd day of March, 2023.
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