Donohue v. Butts

516 S.W.3d 578, 2017 WL 361762, 2017 Tex. App. LEXIS 569
CourtCourt of Appeals of Texas
DecidedJanuary 25, 2017
DocketNo. 04-15-00696-CV
StatusPublished
Cited by9 cases

This text of 516 S.W.3d 578 (Donohue v. Butts) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donohue v. Butts, 516 S.W.3d 578, 2017 WL 361762, 2017 Tex. App. LEXIS 569 (Tex. Ct. App. 2017).

Opinion

MEMORANDUM OPINION

Opinion by: Luz Elena D. Chapa, Justice

The trial court granted appellees Daniel Butts, Shane Merritt, and Robert Vela’s plea to the jurisdiction and dismissed John Michael Donohue’s claims against them. On appeal, Donohue argues the trial court erred by dismissing his claims and denying him the opportunity to proceed to discovery because appellees are not entitled to governmental immunity. We affirm the trial court’s judgment.

Background

Appellees work for Bandera County. Butts is the county’s sheriff; Merritt is a captain in the sheriffs office; and Vela is an investigator for the office. Donohue, who is in prison, sued appellees for damages, alleging they had conspired to commit perjury during his criminal trial. He alleged Vela falsified documents and Merritt perjured himself in furtherance of Do-nohue’s prosecution, and Sheriff Butts is liable as Merritt and Vela’s supervisor, Donohue pled appellees’ conduct gave rise to tort liability for defamation and intentional infliction of emotional distress.

Appellees filed a plea to the jurisdiction. They argued the trial court lacked jurisdiction because Donohue’s pleadings demonstrate they were acting in the general scope of their employment and are therefore entitled to governmental immunity. The trial court granted appellees’ plea to the jurisdiction and dismissed Donohue’s claims. Donohue appeals.1

Standard of Review

We review a trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction is an appropriate mechanism to challenge a trial court’s subject matter jurisdiction. Id. When, as here, a plea to the jurisdiction challenges the pleadings, we determine whether the pleader has alleged facts that affirmatively demonstrate the trial court’s jurisdiction. Id. If the pleadings affirmatively negate the existence of the trial court’s jurisdiction, then the trial court may grant a plea to the jurisdiction without allowing the plaintiff an opportunity to amend his pleadings. Id. at 226-27.

[581]*581. Governmental Immunity & The Texas Tort Claims Act

Sovereign immunity shields a state from suit unless it expressly consents to being sued. See Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Governmental immunity affords similar protection to subdivisions of the state, such as counties. See id. The purpose of sovereign immunity, and its counterpart, governmental immunity, is to protect subdivisions of the state from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Furthermore, a suit against government employees in their official capacities is, in all respects, a suit against the State; thus employees sued in their official capacities are shielded by sovereign immunity. Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 775 (Tex. App.Houston [1st Dist.] 1999, pet. dism’d w.o.j.). Suing an official in his official capacity is simply another way of pleading an action against the governmental unit by which the official is employed. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).

Under Texas law, a governmental unit is immune from tort liability unless the Legislature has waived immunity. See Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act (TTCA) provides a limited waiver of immunity for certain suits against governmental entities. Garcia, 253 S.W.3d at 655. “In order for immunity to be waived under the Act, the claim must arise under one of the three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exceptions from waiver.” Morgan v. City of Alvin, 175 S.W.3d 408, 417 (Tex. App.-Houston [1st Dist.] 2004, no pet.). The three areas of liability in which immunity is waived under TTCA are: “(1) injury caused by an employee’s use of a motor-driven vehicle within the scope of his employment; (2) injury caused by a condition or use of tangible personal or real property; and (3) premise defects.” Id. at 418 (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.022 (West 2011)).

Analysis

“Bandera County is a governmental unit entitled to governmental immunity, and thus, to immunity from suit.” Donohue, 2015 WL 4759931, at *2 (citing Catalina Dev., Inc. v. Cty. of El Paso, 121 S.W.3d 704, 705 (Tex. 2003)). When filing a suit for damages against a governmental entity, the plaintiff must affirmatively plead and prove the court’s jurisdiction to hear the lawsuit under the Tort Claims Act. See Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Donohue’s pleadings did not allege a waiver of immunity, nor does it appear from his pleadings that such a waiver exists. Dono-hue’s claims do not arise from the use of a motor-driven vehicle; do not arise from a condition or use of tangible personal property; and do not arise from a premise defect. See §§ 101.021, 101.022. Rather, Donohue’s claims include defamation and intentional infliction of emotional distress. The TTCA does not waive immunity for these intentional torts. See id. § 101.057(2) (providing TTCA does not waive immunity for claims arising out of assault, battery, false imprisonment, and other intentional torts); see also Hohman, 6 S.W.3d at 777 (stating the TTCA “provides that sovereign immunity exists for intentional torts”). Because the facts pled by Donohue amount to an intentional tort, we hold there is no waiver of immunity under the TTCA for Donohue’s official capacity claims.

[582]*582Next, Donohue contends appellees are not entitled to governmental immunity because they are individuals, not governmental entities, and they were not acting in the general scope of their employment. “If a suit is filed against an employee of a governmental unit based on conduct within the genei-al 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.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (2011). “ ‘Scope of employment’ means 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.” Id § 101.001(5) (West Supp. 2016).

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Cite This Page — Counsel Stack

Bluebook (online)
516 S.W.3d 578, 2017 WL 361762, 2017 Tex. App. LEXIS 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donohue-v-butts-texapp-2017.