Opinion
NUMBER 13-17-00082-CV
02-22-2018
PAUL MINIX, Appellant, v. MR. CHARLTON, ET AL., Appellees.
On appeal from the 135th District Court of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Contreras
Appellant Paul Minix, an inmate proceeding pro se and in forma pauperis, appeals the granting of a plea to the jurisdiction dismissing his suit against appellees Patrick Charlton, Herman Hernandez, and Brandi Gamez. We construe appellant's brief as presenting two main issues: (1) whether the trial court erred in dismissing multiple state- law theft claims on the basis of governmental immunity; and (2) whether the trial court erred in dismissing federal claims for violations of appellant's Eighth and First Amendment rights on the basis of qualified immunity. We affirm in part, reverse in part, and remand for further proceedings.
I. BACKGROUND
Appellant was sentenced on or about March 3, 2016 to eight years' imprisonment in the Texas Department of Criminal Justice (TDCJ)—Institutional Division. Prior to sentencing, appellant had been held at the DeWitt County Jail. After sentencing, appellant was transferred to the Dominguez Unit of TDCJ in San Antonio. Appellant brought suit against four "DeWitt county jail employees" for actions that took place during his time at the DeWitt County Jail.
The defendants named in appellant's petition were: jailer Hernan Hernandez, jail captain Patrick Charlton, jail nurse Brandi Gamez, and jail mail staff member Ms. Garcia. Specifically, appellant brought suit for: (1) theft of legal documents against Hernandez and Charlton; (2) theft of his personal property against Charlton and "any others whose name is documented in [and] on disposition paperwork"; (3) theft of mail and stamps against "jail officials in the mail room"—presumably Garcia; (4) violation of his Eighth Amendment right to adequate medical treatment against Gamez; and (5) violation of his First Amendment right to "file grievances" against Hernandez, Charlton, Gamez, and Garcia. Appellant's petition also stated that the defendants were "being sued [only] in their individual and personal capacities . . . ."
Appellant's original petition lists a "Ms. Garcia" as a defendant and alleges she is a member of the DeWitt County Jail mail staff. However, counsel for appellees states that they were unaware "of a 'Ms. Garcia' and were unable to locate an individual meeting [appellant's] description of said individual." Appellant does not raise an issue on appeal in regard to any claim against this defendant.
Appellant claimed the following personal property was stolen by Charlton: (1) an Android smartphone with a value of $145.00; (2) a stainless steel cross and chain with a sentimental value of $5,000.00; (3) personal shoes with a value of $50.00; (4) a personal belt with a value of $20.00; and (5) personal clothes with a value of $200.00.
Appellant does not raise an issue on appeal regarding the dismissal of his claim against Garcia for the alleged theft of his mail and stamps, nor does appellant raise an issue regarding the dismissal of his claims against Hernandez, Gamez, and Garcia for violations of his First Amendment rights. Therefore, we will not review them. See TEX. R. APP. R. 47.1.
On December 6, 2016 appellees filed a plea to the jurisdiction on the grounds that appellant failed to demonstrate: (1) a valid waiver of governmental immunity to proceed with his state-law tort claims for theft; and (2) the inapplicability of appellees' qualified immunity to proceed with his federal claims for violations of his First and Eighth Amendment rights.
At a hearing on January 4, 2017, appellees did not present any evidence or testimony in support of their plea to the jurisdiction. The trial court found that it lacked subject-matter jurisdiction over appellant's suit and dismissed all of appellant's claims. This appeal followed.
II. STANDARD OF REVIEW
A plea to the jurisdiction is a procedural device used to challenge the court's subject-matter jurisdiction over a claim. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Without subject-matter jurisdiction, a court does not have the authority to render judgment and must dismiss the claims without resolving the parties' substantive arguments. See City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013); Blue, 34 S.W.3d at 553-54. Thus, a defendant can use a plea to the jurisdiction to defeat a cause of action without regard to its merits. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Blue, 34 S.W.3d at 554.
A plaintiff has the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider evidence if it is necessary to resolve them. Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015); Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); Miranda, 133 S.W.3d at 227. If evidence creates a fact question regarding a jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction. Miranda, 133 S.W.3d at 226. Otherwise, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
"Whether a trial court has subject matter jurisdiction and whether the pleader has alleged facts that affirmatively demonstrate the trial court's subject matter jurisdiction are questions of law that we review de novo." La Joya Indep. Sch. Dist. v. Gonzalez, 532 S.W.3d 892, 896 (Tex. App.—Corpus Christi 2017, pet. filed) (citing Miranda, 133 S.W.3d at 226; Tex. Nat. Res. Conservation Comm'n v. IT-David, 74 S.W.3d 849, 855 (Tex. 2002)). We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226, 228. In considering the evidence, we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id. at 227-28.
If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Id.
III. STATE THEFT CLAIMS
By his first issue, appellant argues that the trial court erred in dismissing his claims for theft against Hernandez and Charlton brought under the Texas Theft Liability Act (TTLA). See generally TEX. CIV. PRAC & REM. CODE ANN. §§ 134.001-.005 (West, Westlaw through 2017 1st C.S.).
1. Applicable Law
"The doctrine of sovereign immunity provides that 'no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.'" La Joya, 532 S.W.3d at 897 (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State such as counties. Id. (citing Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)); see, e.g., Hardin Cty. Sheriff's Dept. v. Smith, 290 S.W.3d 550, 553-54 (Tex. App.—Beaumont 2009, no pet.); Johnson v. Johnson Cty., 251 S.W.3d 107, 109 (Tex. App.—Waco 2008, pet. denied).
The Texas Tort Claims Act (TTCA) waives this governmental immunity for certain negligent conduct, but not for intentional torts such as theft. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, .022, .025, .057(2) (West, Westlaw through 2017 1st C.S.); City of Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014). And, the TTCA extends immunity from suits for intentional torts to governmental employees if the suit (1) is based on conduct within the scope of the defendant's employment with the governmental unit and (2) it could have been brought against the government unit under the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011). This is true even if a governmental employee is sued only in their individual capacity. See Tex. Adjutant General's Office v. Ngakoue, 408 S.W.3d 350, 357 (Tex. 2013) (such a suit "is not a suit against the employee; it is, in all but name only, a suit against the governmental unit."); Franka, 332 S.W.3d at 382 n.68 (same).
However, a suit against a governmental employee in his individual capacity for a tort occurring outside the scope of his employment seeks personal liability and is not barred by the TTCA. Molina v. Alvarado, 463 S.W.3d 867, 870-71 (Tex. 2014); see Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, ___ S.W.3d ___ , ___ , 2017 WL 6396028, at *1 (Tex. Dec. 15, 2017); Alexander, 435 S.W.3d at 789, 791.
The "election-of-remedies" section of the Texas Tort Claims Act provides:
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 under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. 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 day the motion is filed.TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West, Westlaw through 2017 1st C.S.).
2. Analysis
Here, it is undisputed that Hernandez and Charlton are employees of the DeWitt County Jail. It is also undisputed that appellant brought suit against Hernandez and Charlton in their individual capacities. Thus, we must determine whether the alleged underlying conduct fell within the scope of their employment as to the following actions: (1) theft of legal documents by Hernandez; (2) theft of legal documents by Charlton; (3) theft of personal property by Charlton. See Franka, 332 S.W.3d at 894.
The TTCA defines "scope of employment" as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in and about the performance of a task lawfully assigned to an employee by a competent authority." TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West, Westlaw through 2017 1st C.S.); see Lopez v. Serna, 414 S.W.3d 890, 894 (Tex. App.—San Antonio 2013, no pet.).
Further,
Nothing in [101.106(f) nor the TTCA's] statutory definition of 'scope of employment' suggest subjective intent is a necessary component of the scope-of-employment analysis. Rather the [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 her job when she committed an alleged tort, not her state of mind when she was doing it.Laverie v. Wetherbe, 517 S.W.3d 748, 752-53 (Tex. 2017) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5)).
The inquiry is whether there is a connection between the employee's job duties and the alleged tortious conduct. Id. at 753. "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 her job responsibilities." Id. Thus, intentional torts can fall within the scope of employment. McFadden v. Olesky, 517 S.W.3d 287, 297 (Tex. App.—Austin 2017, pet. denied); see Laverie, 517 S.W.3d at 755-56; see also, e.g., Alexander, 435 S.W.3d at 789, 792 (holding that claims for assault, conspiracy, slander, false arrest, false imprisonment, and malicious prosecution involved conduct within sheriff's department officers' scope of employment); Fink, 477 S.W.3d at 467-69 (rejecting argument that allegation of intentional tort foreclosed possibility that officer acted within scope of employment.).
Appellees assert that it was undisputed that they were at all times acting within the scope of their employment. We agree.
We first analyze appellant's claim for theft of his legal documents against Hernandez and Charlton. Appellant stated in his petition that "while confined at the DeWitt County Jail[, jailer] Hernandez confiscated and stole legal documents," and that Charlton, as jail captain, "condoned and endorsed the theft" by telling him "that he'd get the legal documents upon . . . leaving the jail." It is reasonable to conclude after an objective assessment that Hernandez was doing his job and performing work duties when, as a jailer at the DeWitt County Jail, he "confiscated" appellant's legal documents. The same is true of Charlton. As the jail captain, Charlton would be performing his work duties when he informed appellant, an inmate, about when he could expect the return of his property. Thus, Hernandez and Charlton were acting within the scope of their employment in regard to appellant's claims for theft of his legal documents. Laverie, 517 S.W.3d at 752-53.
We reach the same conclusion in regard to appellant's claim for theft of his personal property against Charlton. Appellant's petition stated that "Charlton, who [as Jail Captain] is required to sign off on all property transactions[,] is being sued for theft of the . . . named property[, as well as] any other [individual] whose name is documented on disposition of paperwork." Taking all of appellant's allegations as true, we find that this claim can only arise out of Charlton's conduct within the scope of his employment. By stating that Charlton was required to sign off on the disposition as part of his job, appellant is conceding that he is complaining of an action that was carried out in response to duties assigned to Charlton and within the scope of Charlton's employment.
Finally, we must consider whether appellant's claims for theft against Hernandez and Charlton could have been brought under the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Alexander, 435 S.W.3d at 792. A "suit 'could have been brought under [the TTCA] against the governmental unit" if the claim "is in tort" and is not brought "under another statute that independently waives immunity." Donohue v. Butts, 516 S.W.3d 578, 583 (Tex. App.—San Antonio 2017, no pet.) (quoting Franka, 332 S.W.3d at 381). Here, appellant's claims for theft are intentional torts, and the TTLA does not provide a waiver of immunity. See Lopez, 414 S.W.3d at 894 (holding that claim brought under the TTLA is one that could have been brought under TTCA). Thus, appellant's pleading affirmatively negates the existence of jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Miranda, 133 S.W.3d at 226-27. Therefore, the trial court did not err in dismissing appellant's claims for theft against Hernandez and Charlton. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Miranda, 133 S.W.3d at 226.
We overrule appellant's first issue. See Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016) (citing Miranda, 133 S.W.3d at 227) ("Only if the pleadings affirmatively negate jurisdiction should the plea to the jurisdiction be granted without affording the plaintiff[] an opportunity to replead.").
IV. FEDERAL CLAIMS
By his second issue, appellant argues that the trial court erred in granting appellees' plea to the jurisdiction based on their claim of qualified immunity. However, out of his federal claims, appellant only appeals the dismissal of his claim against Gamez for violation of his Eighth Amendment rights and his claim against Charlton for violation of his First Amendment rights.
Section 1983 of title 42 of the United States Code imposes liability for violations of rights protected by the United States Constitution. Leo v. Trevino, 285 S.W.3d 470, 479 (Tex. App.—Corpus Christi 2006, no pet.); see 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 115-90). Qualified immunity is an affirmative defense available to government officials sued in their individual capacities under section 1983. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009); Bexar Cty. v. Giroux-Daniel, 956 S.W.2d 692, 694 (Tex. App.—San Antonio 1997, no pet.). It protects governmental officers with discretionary authority from liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 428 (Tex. 2004). Qualified immunity is a uniquely federal doctrine that "bears some resemblance to the Texas common-law defense of official immunity . . . ." Brown & Gay Eng'g, Inc. v. Olivares, 461 S.W.3d 117, 128 (Tex. 2015).
Like other affirmative defenses, qualified immunity "must be pled and proved by the party asserting it." Id.; see Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). Generally, when claims based on federal substantive law are raised in state court, state law and rules govern the manner in which the federal claims are tried and proved. Johnson v. Nacogdoches Cty. Hosp. Dist., 109 S.W.3d 532, 536 (Tex. App.—Tyler 2001, pet. denied). Under Texas law, an affirmative defense is an independent reason why a plaintiff should not recover. Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Ordinarily, the party asserting an affirmative defense has the burden of both pleading and proving the defense. Id.
Therefore, Gamez and Charlton were required to raise their affirmative defense of qualified immunity in a motion for summary judgment. See Olivares, 461 S.W.3d at 128 (observing that the doctrine of official immunity is an affirmative defense that may not be raised in a plea to the jurisdiction); Haver v. Coats, 491 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (same); Martinez v. Val Verde Cty. Hosp. Dist., 110 S.W.3d 480, 485 (Tex. App.—San Antonio 2003) (same), aff'd, 140 S.W.3d 370 (Tex. 2004); see also Adams v. Prine, No. 04-16-00327-CV, 2017 WL 96119, at *3 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op.) (explaining that a government official is required to raise the defense of quasi-judicial immunity to individual-capacity section 1983 claims in a motion for summary judgment). They did not do so.
Because the doctrine of official immunity is an affirmative defense that may not be raised in a plea to the jurisdiction, the trial court erred in granting the plea and dismissing: (1) appellant's claim against Charlton for retaliation in violation of his First Amendment right to file grievances; and (2) appellant's claim against Gamez for violating his Eighth Amendment right to receive adequate medical care.
We sustain appellant's second issue.
V. CONCLUSION
We affirm the trial court's dismissal of appellant's claims for theft against Hernandez and Charlton, reverse the dismissal of appellant's federal claim against Charlton for alleged violations of his First Amendment right to file grievances and of his claim against Gamez for alleged violations of his Eighth Amendment right to adequate medical care, and remand for further proceedings consistent with this opinion.
DORI CONTRERAS
Justice Delivered and filed the 22nd day of February, 2018.