Ex Parte Wayne Burton

• Court: Court of Appeals of Texas
• Decided: July 11, 2007
• Docket: 10-07-00195-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00195-CR

Ex parte Wayne Burton

From the 411th District Court

San Jacinto County, Texas

Trial Court No. 8638

MEMORANDUM  Opinion

            Wayne Burton seeks to appeal from the refusal of a San Jacinto County district court to grant his post-conviction habeas application.  We will dismiss the appeal for want of jurisdiction for at least two reasons.

            First, a writ of habeas corpus under article 11.07 of the Code of Criminal Procedure is the exclusive remedy available to challenge a final felony conviction after a direct appeal.  See Tex. Code Crim. Proc. Ann. art. 11.07, § 5 (Vernon 2005); Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex. App.—Waco 2006, no pet.).  Although an application under article 11.07 must be filed with the trial court, the writ, which issues by operation of law, “must be made returnable to the Court of Criminal Appeals.”  Tex. Code Crim. Proc. Ann. art. 11.07, § 3 (Vernon 2005).  “Therefore, this Court does not have jurisdiction to entertain a post-conviction felony habeas application or the purported appeal of a trial court’s ruling on such an application.”  Mendenhall, 209 S.W.3d at 261.

            Second, Burton brings this appeal from a district court in San Jacinto County.[1] However, San Jacinto County lies within the geographic boundaries of the Ninth Court of Appeals District rather than the Tenth Court of Appeals District.  See Tex. Gov’t Code Ann. § 22.201(j), (k) (Vernon Supp. 2006).  This Court’s appellate jurisdiction in criminal cases only reaches county and district courts within this Court’s geographic boundaries.  See Tex. Code Crim. Proc. Ann. art. 4.03 (Vernon 2005).

            This Court does not have jurisdiction over a purported appeal in a post-conviction habeas matter, nor does this Court have appellate jurisdiction over criminal cases prosecuted in San Jacinto County.  Accordingly, we dismiss Burton’s appeal for want of jurisdiction.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment, but not this opinion, without issuing a separate opinion)

Appeal dismissed

Opinion delivered and filed July 11, 2007

Do not publish

[CR25]           

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[1]               This Court affirmed Burton’s San Jacinto County conviction for aggravated assault in an unpublished decision.  See Frazier v. State, No. 10-04-235-CR, 2005 WL 2234002 (Tex. App.—Waco Sept. 14, 2005, pet. dism’d, untimely filed) (not designated for publication).  That appeal was originally filed with the Ninth Court of Appeals but was transferred to this Court by the Supreme Court for docket equalization purposes.  Burton’s habeas application is an effort to have that conviction set aside.  However, no similar transfer order has been issued for Burton’s current appeal.

ext-align:justify;line-height: 200%'>         Governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity.  Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998).  Sovereign immunity has two components: immunity from liability and immunity from suit.  Wichita Falls St. Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003).  Immunity from suit is waived to the extent of liability created by the TTCA.  Tex. Civ. Prac. & Rem. Code Ann § 101.025(a) (Vernon 2005); Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).  Immunity from suit protects the state from being sued without its consent.  Texas DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).  Absent the State’s consent to suit, a trial court lacks subject matter jurisdiction.  See id.  Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo.  Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

          In a suit against a governmental entity, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity and pleading facts showing that the trial court has jurisdiction.  Miranda, 133 S.W.3d at 226.  When deciding whether to grant a plea to the jurisdiction, the trial court looks to the allegations in the petition together with any relevant jurisdictional evidence.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

          The substance of WISD’s plea to the jurisdiction involves newly-amended section 101.106 of the Texas Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005).  Previously section 101.106, entitled “Employees Not Liable After Settlement or Judgment” stated:  “A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.”  Act of May 17, 1985, 69^th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106).  In 2003, the Legislature amended section 101.106 to its current form.  Entitled “Election of Remedies,” section 101.106 is as follows:

(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.

(e) If 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.

(f) 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 date the motion is filed.

Tex. Civ. Prac. & Rem. Code § 101.106.

          The Legislature amended section 101.106 apparently to force a plaintiff to choose whether he would seek to impose tort liability on a governmental unit or on governmental employees acting as individuals outside their official capacity.  See Villasan v. O’Rourke, 166 S.W. 3d 752, 758, 759-60 (Tex. App.—Beaumont 2005, pet. filed).  The choice of one immediately and irrevocably bars the plaintiff’s claims against the other.  Tex. Civ. Prac. & Rem. Code § 101.106(a)-(d).  A plaintiff unwise in his choices potentially faces an irrevocable bar against both the governmental entity and its’ employees.  Id.  The effect of the statute is that a plaintiff is no longer able to include every potential tortfeasor in a suit, argue alternative theories of recovery based on the same conduct, and allow a fact finder to decide which party was the wrongdoer.  See Villasan, 166 S.W.3d at 758.  “The prior statutory language may well have been intended to yield the same result, but court interpretations have read it otherwise so long as the plaintiff was willing to sue the parties in the ‘correct’ order.”  Michael D. Morrison, Texas Tort Law - 2003; It Was a Very _____ Year, 56 Baylor L. Rev. 423, 479-80 (2004).

          Of the few appellate decisions addressing section 101.106, all involve dismissing the suit against the governmental employees, specifically section 101.106(e).  This is because the statute strongly favors dismissal of the governmental employees.  Tex. Civ. Prac. Rem. Code § 101.106(e), (f).  Upon the motion of either the government or the employees, a plaintiff is forced to proceed against the government alone in three circumstances: “(1) when the suit is initially filed against the governmental agency alone; (2) when the suit is initially filed against both governmental agency and its employees; and (3) when the suit is initially filed against the government employee when the employee’s conduct is alleged to have been within his scope of employment.”  Villasan, 166 S.W.3d at 758.  The decisions have held that once the government files a motion to dismiss the employees under section 101.106(e), the trial court must grant the motion and dismiss the employees from the suit.  Villasan, 166 S.W.3d at 761-62; Hernandez v. Duncanville Indep. Sch. Dist., No. 3:04-CV-2028-BH (B), 2005 U.S. Dist. LEXIS 5090 at **16-18 (N.D. Tex. Mar. 29, 2005) (not designated for publication); Martinez v. Ctr. for Health Care Servs., No. SA-04-CA-0412-RF, 2005 U.S. Dist. LEXIS 9379 at *6 (W.D. Tex. May 12, 2005) (not designated for publication).

          The present case concerns the opposite situation.  Instead of seeking to dismiss the Defendant Employees under section 101.106(e), WISD argues that 101.106(b) requires the dismissal of Appellees’ case against the governmental unit.

         Section 101.106(b) states that the filing of a suit against any employee of a governmental unit forever bars any suit or recovery against the governmental unit involving the “same subject matter.”  Because Appellees filed suit against the Defendant Employees for malicious prosecution, WISD argues that Appellees suit against it for unlawful termination of their employment should be dismissed under section 101.106(b).  WISD’s arguments in support of dismissal under section 101.106(b) are twofold: (1) under section 101.106(b) the capacity in which the Defendant Employees were sued is irrelevant; and (2) the cause of action against the Defendant Employees and the cause of action against WISD consist of the same subject matter.

Capacity of Employee Irrelevant

         First, WISD argues that the simple act of filing a suit against a governmental employee automatically bars a suit against the governmental unit, irrespective of whether the suit is filed against the employee in his official capacity or in his individual capacity.  WISD states that it is irrelevant that Appellees sued the Defendant Employees for a common law claim outside the TTCA.  They reason that because the language “under this chapter” is omitted from section 101.106(b), the provision is not restricted to TTCA claims alone, but applies to any common law tort claim brought against a governmental employee.  Nor, WISD argues, does it matter that Appellees sued the Defendant Employees in their individual capacity because section 101.106(b) does not distinguish between suits filed against government employees in their official capacity and those filed against employees in their individual capacities.  Therefore, WISD argues it is irrelevant that Appellees filed the lawsuit against the Defendant Employees, either as individuals or in their official capacity, because in either instance the lawsuit against WISD is still barred.

          Because amended section 101.106 contains similar language to that of former section 101.106, we look to previous interpretations of former section 101.106 for our analysis.  See Act of May 17, 1985, 69^th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106).  While the former statute did not address it, interpretations of former section 101.106 did not differentiate between whether the government employee was sued in his official or individual capacity in order to determine whether the statute’s bar applied.  “Whether the plaintiff’s claim against the governmental unit falls under the TTCA is relevant, but whether the plaintiff’s claim against the employee falls under the TTCA is not.”  Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 710 (Tex. App.—San Antonio 2002, pet. denied) (citing Brand v. Savage, 920 S.W.2d 672, 674-75 (Tex. App.—Houston [1st Dist.] 1995, no writ)).  This is because the purpose of former section 101.106 was to protect government employees from individual liability when a claim based upon the same facts is also made against their government employers under the TTCA.  Hallmark, 94 S.W.3d at 710 (citing Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex. App.—El Paso 1997, no writ)).

          The current version of amended-statute section 101.106(b) also does not differentiate between an employee in his official or individual capacity, and a deeper analysis reveals why this is so.  Tex. Civ. Prac. & Rem. Code § 101.106.  Filing a suit against an employee in his official capacity is “an attempt to impose liability on the State.”  Tex. Parks and Wildlife Dept. v. E.E. Lowrey Realty, Ltd., 155 S.W.3d 456, 458 (Tex. App.—Waco 2004, pet. filed) (citing Vela v. Rocha, 52 S.W.3d 398, 403 (Tex. App.—Corpus Christi 2001, no pet.)).  And so, if an employee sued in his official capacity files a motion under section 101.106(f), and the plaintiff dismisses the employee and amends his petition to name the governmental unit, then the suit is considered as a suit against the governmental unit.  Tex. Civ. Prac. & Rem. Code § 101.106(f).  However, if the employee makes no such motion, then the government is protected by the irrevocable bar of section 101.106(b).  Tex. Civ. Prac. & Rem. Code § 101.106(b).  It is precisely because section 101.106(b) does not address the capacity of the employee, that subsection (b) applies to employees sued in their official capacity who fail to file a motion under section 101.106(f).  Tex. Civ. Prac. & Rem. Code § 101.106(b), (f).

          Similarly, because section 101.106(b) omits “under this chapter” it also applies to employees sued in their individual capacities, as employees sued in this capacity are usually sued under the common law.  See McGowen v. Huang, 120 S.W.3d 452, 459 (Tex. App.—Texarkana 2003, pet. denied).  The governmental unit is protected under both situations.  Therefore, construing section 101.106 in the “plain and common meaning of the statute’s words,” the absence of a reference to “under this chapter” or to the capacity under which the employee is sued is intentional.  Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 223 (Tex. App.—Dallas 2005, no pet.) (quoting LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995)); Villasan, 2005 Tex. App. LEXIS 4022 at *19.  Accordingly, we agree with WISD that under section 101.106(b) whether the Defendant Employees were sued in their official or individual capacities is irrelevant.

Same Subject Matter

         WISD also argues that the lawsuit against WISD and the Defendant Employees involves the same subject matter, as required by the statute.  Tex. Civ. Prac. & Rem. Code § 101.106(b).  WISD states that the subject matter of the lawsuit was the unlawful termination of the Appellees employment, and the malicious prosecution claim against the Defendant Employees is connected with the Appellees unlawful termination claim.  WISD states that, but for the Defendant Employees actions which ultimately led to the termination of Appellees’ employment, there would be no cause of action against WISD.  Thus, WISD argues that the actions and occurrences between Appellees, WISD, and the Defendant Employees are so inextricably intertwined that they cannot be separated.  Therefore, WISD contends that Appellees’ claim against WISD is forever barred.

         Again we look to previous interpretations of former section 101.106 for our analysis.  See Act of May 17, 1985, 69^th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106).  Under the former statute, whether suits against the government and its employees were based on the same cause of action was irrelevant.  Bossley, 968 S.W.2d at 343.  The relevant inquiry was whether the two causes of action involved the same subject matter.  Id.; Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997); Beasley v. Clark, 986 S.W.2d 256, 257 (Tex. App.—Houston [1st Dist.] 1998, no pet.); McGowen, 120 S.W.3d at 459.  In previous cases, “same subject matter” is defined as “arising out of the same actions, transactions, or occurrences.”  Bossley, 968 S.W.2d at 343; Newman, 960 S.W.2d at 622.  Other courts use the factors of res judicata as relevant in determining same subject matter.  See McGowen, 120 S.W.3d at 459.  Under the doctrine of res judicata, determining whether suits involve the same transaction are based on a consideration of “whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties’ expectations or business understanding or usage.”  Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 386 (Tex. App.—Beaumont 2004, pet. denied) (quoting Restatement (second) of Judgments § 24(2)); McGowen, 120 S.W.3d at 459 (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992)).

          Appellees argue that the suit against WISD and the Defendant Employees involves two different set of facts: those involving their unlawful termination and those involving their malicious prosecution.  We agree.

          The Defendant Employees reported Appellees alleged theft to the police two months after Appellees’ employment had been terminated.  WISD claims that the two causes of action are intertwined because the actions of the Defendant Employees led to the Appellees’ termination, and because the accusations against the Appellees were well known to those on the Board the day the Board rejected Appellees appeal.  However, Appellees state that on the day their administrative appeal was denied, they were unaware that the Defendant Employees had accused them of wrongdoing, much less reported their suspicions to the police.  Appellees’ administrative appeal was denied shortly before they were arrested.  Also, the actual termination of their employment, the subject of their complaint against WISD, and the facts leading up to their termination, occurred nearly four months before they were arrested.  The filing of a grievance claim by Appellees and the subsequent termination of their employment by WISD in alleged retaliation for filing the grievance are the actions that led to the filing of the unlawful termination claim.  The alleged false accusations of criminal conduct made to the police and the subsequent arrest of Appellees, none of which occurred before or contributed to the termination of the Appellees’ employment four months prior, are the facts that led to the filing of the malicious prosecution claim.

          WISD also argues that Appellees petition is proof that the two causes of action consist of the same subject matter because the lawsuit was brought against both WISD and the Defendant Employees and the Appellees in their petition seek to recover from “Defendants, jointly and severally” in their prayer for relief.  Though both causes of action are brought in the same lawsuit, Appellees state that this was for the purpose of judicial economy.  The facts for each cause of action were separated into different paragraphs in their petition and included in the separate paragraphs was a specific request for damages from each defendant.

          We find that the facts giving rise to the different causes of action are sufficiently separated by time and place and do not arise out of the same transactions or occurrences so as to constitute different subject matters under section 101.106(b).  See Bossley, 968 S.W.2d at 343; McGowen, 120 S.W.3d at 459.  Therefore, 101.106(b) does not apply to WISD as a means by which it should be dismissed from Appellees’ lawsuit.  The trial court did not err in denying WISD’s plea to the jurisdiction.  Accordingly, we overrule WISD’s only issue.

Conclusion

          Having overruled WISD’s only issue, we affirm the judgment of the trial court.

                                                                   FELIPE REYNA

                                                                   Justice

          Justice Reyna

          (Chief Justice Gray dissents with a note:  By a separate order issued November 23, 2005, the Appellant’s motion for rehearing is being denied by a majority of the justices who participated in the original decision of this appeal.  But the motion for rehearing pointed out sufficient problems with the opinion originally issued on September 7, 2005, that the opinion and judgment of that date are being withdrawn and the majority’s new opinion and judgment dated November 23, 2005, are substituted for them.  My dissenting opinion dated September 7, 2005, is not withdrawn but will be reissued on November 23, 2005.  For a further discussion of the problems being created by the explosion of withdrawals and substituted opinions, see Kelly v. Gaines, No. 10-03-00369-CV, 2005 Tex. App. LEXIS 9628 (Tex. App.—Waco Nov. 16, 2005)(Gray, C.J., concurring and dissenting).

Affirmed

Opinion delivered and filed November 23, 2005

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