IN THE TENTH COURT OF APPEALS
No. 10-16-00158-CV
ALVIE ROBINSON, Appellant v.
ALICIA SCOTT AND BRANDEN MULLENS, Appellees
From the 278th District Court Walker County, Texas Trial Court No. 25,737
MEMORANDUM OPINION
Alvie Robinson is a prison inmate. He sued Texas Department of Criminal Justice
Correctional Officers Alicia Scott and Branden Mullens (officers) in their official and
individual capacities under the Texas Theft Liability Act for damages arising from the
alleged theft and conversion of his personal property when he was moved from one
prison wing to another. The officers filed a plea to the jurisdiction, and after a hearing,
the trial court granted the plea to the jurisdiction. Because the officers were entitled to
raise sovereign immunity, because Robinson’s claims were subject to the election of remedies provision of the Texas Tort Claims Act, and because an earlier ruling allegedly
denying the motion by a different trial court judge did not bind a subsequent trial court
judge under the doctrine of stare decisis to dismiss the officers’ plea to the jurisdiction, the
trial court’s judgment is affirmed.
OFFICIAL IMMUNITY
Robinson alleged in his petition the officers were charged with inventorying his
property when he arrived at the new prison wing and committed theft and conversion
when the property went missing.
In his first issue, Robinson complains that the trial court erred in granting the
officers’ plea to the jurisdiction because the officers were not entitled to official immunity.
Specifically, he asserts the officers’ acts of inventorying his property were ministerial and
thus, not subject to official immunity. But the officers did not claim official immunity in
their plea to the jurisdiction. They claimed sovereign immunity. Robinson, however,
contends that because he did not name the State as a defendant and only the State is
entitled to sovereign immunity, the officers raised only a claim of official immunity.
Robinson is incorrect.
Generally, sovereign immunity bars suits against the State and its entities, and this
immunity remains intact unless surrendered in express and unequivocal terms by the
statute's clear and unambiguous waiver.1 TEX. GOV'T CODE ANN. § 311.034 (West 2013);
1 Official immunity is an affirmative defense that protects government employees from personal liability. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).
Robinson v. Scott Page 2 Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012). A suit against a
government employee in his official capacity is a suit against his government employer;
therefore, an employee sued in his official capacity has the same governmental immunity,
derivatively, as his government employer. Franka v. Velasquez, 332 S.W.3d 367, 382-83
(Tex. 2011). Robinson sued the officers in their official capacities; thus, they are entitled
to raise sovereign immunity, as they did. They did not raise the affirmative defense of
official immunity.
Accordingly, Robinson’s first issue is overruled.
ELECTION OF REMEDIES
Next, Robinson asserts that his claims were not subject to the Texas Tort Claims
Act’s election of remedies provision, specifically section 101.106(f), because he alleged
claims under the Texas Theft Liability Act, and theft and conversion are not intentional
torts.2
A tort is a civil wrong for which a remedy may be obtained, usually in the form of
damages. BLACK’S LAW DICTIONARY 1496 (7th ed. 1999). Conversion and theft are torts.
See RESTATEMENT (SECOND) OF TORTS, § 222A 1979); Zapata v. Ford Motor Credit Co., 615
S.W.2d 198, 201 (Tex. 1981) (conversion); City of Houston v. Petroleum Traders Corp., 261
S.W.3d 350, 361 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (conversion—intentional
2 Whether a tort is an intentional tort is only relevant to the Texas Tort Claims Act’s waiver of immunity. TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West 2011) (chapter does not apply to intentional torts). A plaintiff’s allegation of an intentional tort does not affect the application of section 101.106. See Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex. 2011) (“…any tort claim against the government is brought ‘under’ the Act for purposes of section 101.106, even if the Act does not waive immunity.”).
Robinson v. Scott Page 3 tort); Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).
Section 101.106(f) protects employees of governmental units from tort suits against
them in their individual capacities that could have been brought under the TTCA against
the governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). A
tort claim may be "brought under" the TTCA regardless of whether the TTCA waives
immunity for that claim. Tex. Adjutant General's Office v. Ngakoue, 408 S.W.3d 350, 356 n.5
(Tex. 2013); Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011). However, claims brought
against the government pursuant to statutory waivers of immunity that exist apart from
the TTCA are not "brought under" the TTCA. Ngakoue, 408 S.W.3d at 356 n.5; Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).
Robinson alleged Scott and Mullins failed to complete their inventories of
Robinson’s property which ultimately resulted in him being deprived of his personal
property. These actions or inactions, he contended, amounted to “theft and/or
conversion” in violation of the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 134.001-.005 (West 2011). However, the TTLA does not waive sovereign
immunity. Thus, Robinson tort claims against the officers “could have been brought”
against the prison and are subject to section 101.106(f).3
Accordingly, Robinson’s second issue is overruled.
3 Artful pleading will not change the tort nature of the claim. Fink v. Anderson, 477 S.W.3d 460, 472 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Robinson v. Scott Page 4 STARE DECISIS
In his third issue, Robinson contends the trial court should have dismissed the
State’s plea to the jurisdiction pursuant to the doctrine of stare decisis because the
jurisdictional issues raised by the State had been previously denied by the trial court.
Robinson asserts that the prior sitting trial court judge heard and denied, albeit orally,
two previously filed motions for summary judgment raising sovereign immunity.4
The doctrine of stare decisis governs only the determination of questions of law and
its observance does not depend upon identity of parties. Swilley v. McCain, 374 S.W.2d
871, 875 (Tex. 1964). After a principle, rule, or proposition of law has been squarely
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IN THE TENTH COURT OF APPEALS
No. 10-16-00158-CV
ALVIE ROBINSON, Appellant v.
ALICIA SCOTT AND BRANDEN MULLENS, Appellees
From the 278th District Court Walker County, Texas Trial Court No. 25,737
MEMORANDUM OPINION
Alvie Robinson is a prison inmate. He sued Texas Department of Criminal Justice
Correctional Officers Alicia Scott and Branden Mullens (officers) in their official and
individual capacities under the Texas Theft Liability Act for damages arising from the
alleged theft and conversion of his personal property when he was moved from one
prison wing to another. The officers filed a plea to the jurisdiction, and after a hearing,
the trial court granted the plea to the jurisdiction. Because the officers were entitled to
raise sovereign immunity, because Robinson’s claims were subject to the election of remedies provision of the Texas Tort Claims Act, and because an earlier ruling allegedly
denying the motion by a different trial court judge did not bind a subsequent trial court
judge under the doctrine of stare decisis to dismiss the officers’ plea to the jurisdiction, the
trial court’s judgment is affirmed.
OFFICIAL IMMUNITY
Robinson alleged in his petition the officers were charged with inventorying his
property when he arrived at the new prison wing and committed theft and conversion
when the property went missing.
In his first issue, Robinson complains that the trial court erred in granting the
officers’ plea to the jurisdiction because the officers were not entitled to official immunity.
Specifically, he asserts the officers’ acts of inventorying his property were ministerial and
thus, not subject to official immunity. But the officers did not claim official immunity in
their plea to the jurisdiction. They claimed sovereign immunity. Robinson, however,
contends that because he did not name the State as a defendant and only the State is
entitled to sovereign immunity, the officers raised only a claim of official immunity.
Robinson is incorrect.
Generally, sovereign immunity bars suits against the State and its entities, and this
immunity remains intact unless surrendered in express and unequivocal terms by the
statute's clear and unambiguous waiver.1 TEX. GOV'T CODE ANN. § 311.034 (West 2013);
1 Official immunity is an affirmative defense that protects government employees from personal liability. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).
Robinson v. Scott Page 2 Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012). A suit against a
government employee in his official capacity is a suit against his government employer;
therefore, an employee sued in his official capacity has the same governmental immunity,
derivatively, as his government employer. Franka v. Velasquez, 332 S.W.3d 367, 382-83
(Tex. 2011). Robinson sued the officers in their official capacities; thus, they are entitled
to raise sovereign immunity, as they did. They did not raise the affirmative defense of
official immunity.
Accordingly, Robinson’s first issue is overruled.
ELECTION OF REMEDIES
Next, Robinson asserts that his claims were not subject to the Texas Tort Claims
Act’s election of remedies provision, specifically section 101.106(f), because he alleged
claims under the Texas Theft Liability Act, and theft and conversion are not intentional
torts.2
A tort is a civil wrong for which a remedy may be obtained, usually in the form of
damages. BLACK’S LAW DICTIONARY 1496 (7th ed. 1999). Conversion and theft are torts.
See RESTATEMENT (SECOND) OF TORTS, § 222A 1979); Zapata v. Ford Motor Credit Co., 615
S.W.2d 198, 201 (Tex. 1981) (conversion); City of Houston v. Petroleum Traders Corp., 261
S.W.3d 350, 361 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (conversion—intentional
2 Whether a tort is an intentional tort is only relevant to the Texas Tort Claims Act’s waiver of immunity. TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West 2011) (chapter does not apply to intentional torts). A plaintiff’s allegation of an intentional tort does not affect the application of section 101.106. See Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex. 2011) (“…any tort claim against the government is brought ‘under’ the Act for purposes of section 101.106, even if the Act does not waive immunity.”).
Robinson v. Scott Page 3 tort); Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).
Section 101.106(f) protects employees of governmental units from tort suits against
them in their individual capacities that could have been brought under the TTCA against
the governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). A
tort claim may be "brought under" the TTCA regardless of whether the TTCA waives
immunity for that claim. Tex. Adjutant General's Office v. Ngakoue, 408 S.W.3d 350, 356 n.5
(Tex. 2013); Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011). However, claims brought
against the government pursuant to statutory waivers of immunity that exist apart from
the TTCA are not "brought under" the TTCA. Ngakoue, 408 S.W.3d at 356 n.5; Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).
Robinson alleged Scott and Mullins failed to complete their inventories of
Robinson’s property which ultimately resulted in him being deprived of his personal
property. These actions or inactions, he contended, amounted to “theft and/or
conversion” in violation of the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 134.001-.005 (West 2011). However, the TTLA does not waive sovereign
immunity. Thus, Robinson tort claims against the officers “could have been brought”
against the prison and are subject to section 101.106(f).3
Accordingly, Robinson’s second issue is overruled.
3 Artful pleading will not change the tort nature of the claim. Fink v. Anderson, 477 S.W.3d 460, 472 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Robinson v. Scott Page 4 STARE DECISIS
In his third issue, Robinson contends the trial court should have dismissed the
State’s plea to the jurisdiction pursuant to the doctrine of stare decisis because the
jurisdictional issues raised by the State had been previously denied by the trial court.
Robinson asserts that the prior sitting trial court judge heard and denied, albeit orally,
two previously filed motions for summary judgment raising sovereign immunity.4
The doctrine of stare decisis governs only the determination of questions of law and
its observance does not depend upon identity of parties. Swilley v. McCain, 374 S.W.2d
871, 875 (Tex. 1964). After a principle, rule, or proposition of law has been squarely
decided by the Supreme Court, or the highest court of the State having jurisdiction of the
particular case, the decision is accepted as a binding precedent by the same court or other
courts of lower rank when the very point is again presented in a subsequent suit between
different parties. Id.
Robinson cites to nothing other than stare decisis for the proposition that one cannot
move for summary judgment or dismissal of a claim after a previous motion has been
denied. Assuming without deciding that trial courts are bound by their own
determinations of law under the doctrine of stare decisis, the trial court did not make a
determination of law in this case and the issue of sovereign immunity was not presented
in a subsequent suit between different parties. Thus, the doctrine of stare decisis does not
4 The record before us contains only one motion for summary judgment filed by the officers, and the court’s docket sheet contains only one docket entry denying the officers’ motion for summary judgment.
Robinson v. Scott Page 5 support Robinson’s proposition. Accordingly, the trial court was not bound by stare
decisis to deny the officers’ plea to the jurisdiction.
Robinson’s third issue is overruled.
CONCLUSION
Having overruled each of Robinson’s issues raised on appeal, we affirm the trial
court’s judgment.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 28, 2018 [CV06]
Robinson v. Scott Page 6