In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00061-CV __________________
LAYNE WALKER, Appellant
V.
STEPHEN HARTMAN, Appellee __________________________________________________________________
On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-198,246 __________________________________________________________________
MEMORANDUM OPINION
In an accelerated appeal, Layne Walker challenges the trial court’s denial of
his plea to the jurisdiction. This appeal arises from a lawsuit filed by Stephen
Hartman against Walker and others for claims stemming from Hartman’s 2013 arrest
in Walker’s courtroom. In one issue on appeal, Walker asserts that the trial court
erred when it denied his plea to the jurisdiction because he is entitled to sovereign
immunity, and Hartman’s claims for malicious prosecution and civil conspiracy are
1 barred by the Texas Tort Claims Act (TTCA) election of remedies. 1, 2 See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(a)–(f). For the reasons explained below, we
affirm.
I. Factual Background
In this case’s first journey to the Court of Appeals, the factual details were
explained extensively in our prior opinion. See Walker v. Hartman, 516 S.W.3d 71,
75–77 (Tex. App.—Beaumont 2017, pet. denied) (Walker I). As such, we adopt the
background facts as stated in Walker I. See id. On May 28, 2013, Hartman, a licensed
investigator and licensed process server employed by Klein Investigations and
Consulting, entered the 252nd District Courtroom while Walker, the former judge
of said court, was presiding. Hartman pleaded that he approached the bar in the
courtroom, but did not cross it, and after motioning for the bailiff, Deputy Lewis, to
come toward him, he whispered to Lewis that he needed to serve Walker with a
summons. According to Hartman, Lewis walked to Deputy Broussard, and
Broussard “rushed toward Hartman and immediately began pushing Hartman to the
1 Walker initially challenged the trial court’s denial of his motion for summary judgment based on res judicata and collateral estoppel but has since withdrawn that issue. 2 While Walker presents the argument that section 101.106(a) and (f) of the TTCA bars the claims against him in conjunction with his sovereign immunity issue, we address that claim as a separate issue. 2 exit door, stating Hartman needed to ‘leave or go under arrest.’” According to
Hartman’s petition, he did not attempt to serve Walker in court.
Hartman pleaded that although he identified himself as a licensed process
server and did nothing disruptive, Deputies Lewis and Broussard, as well as Deputy
Barker, placed Hartman under arrest and confiscated his personal property, which
included, among other things, his iPhone and a video recording pen that had captured
the events. Hartman also pleaded that the officers used excessive force during his
arrest and detained him for an excessively long period. Hartman alleged that Walker
knew in advance Hartman intended to serve him and that Walker had instructed
Deputies Lewis, Broussard, and Barker to arrest Hartman when Hartman stated his
intention to serve the summons.
According to Hartman’s petition, the three deputies subsequently allowed him
to serve the summons on Walker in the jury room. Hartman pleaded that he was told
he would be charged with interfering with public duties and disrupting a public
meeting, and he alleged that Deputies Broussard, Barker, and Lewis falsified
probable cause affidavits to support those charges. In addition, Hartman alleged that
Walker and other defendants, working together, replaced Hartman’s recording pen
with a pocket screwdriver “as part of their scheme to hide Hartman’s recording pen
and its evidence[.]” Hartman also alleged that Walker’s court coordinator
3 “maliciously sought to revoke Hartman’s professional licenses[]” by filing formal
complaints with the Texas Department of Public Safety Private Security Bureau, the
Texas Process Server Review Board, and the Texas Association of Licensed
Investigators (a trade association). As a result of the complaints being filed,
Hartman’s licenses as a private investigator, personal protection officer, and
commissioned security guard were suspended for approximately three months until
his criminal case was dismissed.
Hartman also pleaded that “Walker, with the participation by overt acts of all
other Defendants, prosecuted a malicious, illegal criminal case against Hartman[.]”
Hartman alleged that Walker and other defendants illegally purported to, or
pretended to, “hire[] Joe Alford to serve as a District Attorney Pro Tem (DAPT),
and arranged for illegal payment of Joe Alford out of the Texas Indigent Defense
Fund (IDF).”
According to Hartman, Walker instructed Broussard to take Hartman’s
recording pen home, where Broussard downloaded it onto a CD and attempted to
delete the pen’s contents. According to Hartman, Walker and other defendants
instructed the persons present in the courtroom during the incident “to provide
perjured affidavits and one false witness statement[] to support Hartman’s arrest and
prosecution[]” and instructed sheriff’s deputies to prepare falsified arrest reports and
4 probable cause affidavits. Hartman’s petition alleged that the recording pen
contained evidence proving that the probable cause arrest affidavits and reports, as
well as the affidavits of witnesses, were “perjured and materially false[.]” Hartman
further alleged that the defendants who participated in a “pattern of denials and
obfuscations about the existence of the recording pen and its evidence” acted on the
personal orders of Walker and other defendants.
II. Procedural History
Hartman filed a federal lawsuit against Walker individually, The State of
Texas, Jefferson County, the courtroom bailiffs, sheriff’s department employees,
and individuals who witnessed Hartman’s arrest and signed affidavits about his
arrest, seeking damages and remedies for violations of 42 U.S.C. § 1983, and against
Walker and his court coordinator for tortious interference with business
relationships, defamation, invasion of privacy and intentional infliction of emotional
distress. In his second amended federal complaint, Hartman effectively nonsuited
the State of Texas by eliminating any allegations against the State while alleging
additional state tort claims against Jefferson County, Walker, and other named
defendants in their individual capacity. 3 Walker’s federal lawsuit was ultimately
3 There is no record showing the State of Texas ever answered or made an appearance in the federal lawsuit before it was nonsuited. 5 dismissed. Hartman then filed this suit in state court alleging Texas tort claims
against Walker, the bailiffs, sheriff’s department employees, Walker’s courtroom
staff, and the individuals who signed the affidavits.
In his first response to Hartman’s pleadings, Walker requested the trial court
dismiss Hartman’s claims under the Texas Citizens Participation Act (TCPA). See
generally Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011. Subsequently, Walker
amended his response and filed a Rule 91a motion to dismiss based on collateral
estoppel, res judicata and judicial immunity, quasi-judicial immunity, and sovereign
immunity. See Tex. R. Civ. P. 91a. After a hearing on Walker’s Rule 91a motion,
the trial court granted Walker’s request in part and denied it in part. Specifically, the
trial court held that “the motion is granted with respect to conduct of Walker in the
courtroom (the arrest) but DENIED with respect to the conduct that occurred
subsequently.” Walker appealed to this Court, and we affirmed the trial court’s
ruling. See Walker I, 516 S.W.3d at 84.
In 2018, Walker filed another motion to dismiss for lack of subject matter
jurisdiction based on the defense of sovereign immunity. In his motion, Walker
argued that “[a] government employee has sovereign or governmental immunity
when he acts as a representative of the government.” Walker argued that the TTCA
election of remedies sections 101.106(a) and (f) required the dismissal of the claims
6 against him. Walker contended that the TTCA election of remedies provision of
section 101.106(a) barred Hartman’s claims because Hartman elected to sue the
State of Texas and Jefferson County in federal court, barring any litigation against
Walker individually. In addition, Walker argued that Hartman’s claims should be
barred because the acts of Walker made the basis of Hartman’s claims were
performed in his official capacity and in the course and scope of his employment as
provided under section 101.106(f). After a hearing, the trial court denied Walker’s
motion to dismiss for lack of subject matter jurisdiction based on sovereign
immunity. Walker timely appealed.
III. Standard of Review
Section 51.014 of the Texas Civil Practice and Remedies Code gives us
jurisdiction over this interlocutory appeal of the trial court’s denial of a plea to the
jurisdiction. See Tex. Civ. Prac & Rem. Code Ann. § 51.014(a)(5), (8); see also
Lenoir v. Marino, 469 S.W.3d 669, 673 n.2 (Tex. App.—Houston [1st Dist.] 2015)
(op. on reh’g), aff’d, 526 S.W.3d 403 (Tex. 2017). “A plea questioning the trial
court’s jurisdiction raises a question of law that we review de novo.” State v.
Holland, 221 S.W.3d 639, 642 (Tex. 2007) (citing Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); see also Menefee v. Medlen, 319
S.W.3d 868, 871 n.1 (Tex. App.—Fort Worth 2010, no pet.) (citing Tex. Civ. Prac.
7 & Rem. Code Ann. §§ 51.014, 101.106)) (recognizing an appellate court’s
jurisdiction pursuant to section 51.014(a)(5) of the Civil Practice and Remedies
Code over trial court rulings on governmental immunity under section 101.106 of
the TTCA), disapproved of on other grounds, Franka v. Velasquez, 332 S.W.3d 367,
382 n.67 (Tex. 2011).
IV. Sovereign Immunity
A. Analysis
In his first issue, Walker argues that the trial court erred when it denied his
motion to dismiss based on sovereign immunity because “Hartman’s own judicial
admissions establish Walker’s sovereign immunity from suit as an employee of the
[S]tate of Texas or one of its political subdivisions” and “[t]he trial court should have
. . . dismissed Hartman’s claims for want of jurisdiction[.]”
“In Texas, sovereign immunity deprives a trial court of subject matter
jurisdiction for lawsuits in which the state or certain governmental units have been
sued unless the state consents to suit.” Miranda, 133 S.W.3d at 224 (citations
omitted). Sovereign immunity involves both immunity from suit and from liability.
Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006). “Immunity
from liability is an affirmative defense that bars enforcement of a judgment against
a governmental entity, while immunity from suit bars suit against the entity
8 altogether and may be raised in a plea to the jurisdiction.” Brown & Gay Eng’g, Inc.
v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015) (citations omitted).
Although Walker asserts in his brief that he is entitled to sovereign immunity,
that term is often used interchangeably with governmental immunity when, in
reality, they are two distinct concepts. In the context Walker raised the defense in
his answer, we will review Walker’s claim of sovereign immunity as a claim for
governmental immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,
694 n.3 (Tex. 2003) (citations omitted)
An individual employee may be entitled to governmental immunity if he is
sued in his official capacity. Nueces Cty. v. Ferguson, 97 S.W.3d 205, 214 (Tex.
App.—Corpus Christi 2002, no pet.). “Persons sued in their official capacity may
raise any defense available to the governmental unit, including sovereign immunity”
although this immunity does not apply to a person sued in their individual capacity
and “[p]ersons sued in their individual capacities, . . . may not rely on sovereign
immunity protections for claims against them in that capacity, although they may
assert the defense of official immunity.” Id. at 215 (citations omitted). “[P]ersons
sued in both official and individual capacities may assert both official and sovereign
immunity, although they enjoy sovereign immunity protection only to the extent that
they were acting in their official capacity.” Id.
9 1. Official Capacity or Individual Capacity
We begin our analysis with a determination of whether Walker was sued in
his official capacity or individual capacity to determine if he is entitled to claim
governmental immunity. Regardless of what the movant states, to make this
determination, we review the plaintiff’s pleading and perform a “course of
proceedings” review and “ascertain the true nature of the plaintiff’s claims[.]” Ross
v. Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 743 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). In the trial court, Hartman asserted two
claims against Walker, one alleging malicious prosecution and the other based on an
alleged civil conspiracy. In his 5th amended petition, Hartman pleaded that after he
was arrested in Walker’s courtroom, Walker, along with several other defendants,
orchestrated a conspiracy to have him illegally prosecuted for his actions. He argues
Walker’s actions were not within his official capacity as judge. Walker, on the other
hand, asserts he acted within his official capacity, stating that “[a] judge[] presiding
over his courtroom, suppressing disruption of proceedings, and even securing a
criminal prosecution against the person who disrupted proceedings is part of a
judge’s job.” As we determined in Walker I, Hartman’s claims for malicious
prosecution and civil conspiracy, as pleaded, were based on acts that occurred after
10 Hartman was removed from Walker’s courtroom. See 516 S.W.3d at 83–84.
Generally, Hartman’s allegations focus on Walker’s actions after he left the bench,
and given the facts he pleaded, the pleadings alleged acts that fall outside the general
scope of duties of a district judge. Id. And Hartman pleaded facts alleging Walker
committed acts that were outside the duties Walker had as a district judge in his
official capacity. Id. Therefore, we conclude Hartman did not sue Walker in his
official capacity; consequently, governmental immunity does not protect Walker
from suit assuming the facts Hartman alleged are true.
2. Official Immunity
A person sued in an individual capacity may still be entitled to official
immunity, even though governmental immunity does not apply. Franka, 332 S.W.3d
at 382–83. If a person is sued in their individual capacity, they may be held
personally liable for their own torts to the extent the employee is not entitled to
official immunity. Tex. Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 357
(Tex. 2013). “Official immunity . . . is an affirmative defense protecting public
officials from individual liability.” City of El Paso v. Heinrich, 284 S.W.3d 366, 380
(Tex. 2009). “[U]nlike sovereign immunity from suit, which . . . may be raised in a
plea to the jurisdiction, official immunity is an affirmative defense that must be pled
11 and proved by the party asserting it.” Brown, 461 S.W.3d at 128 (citing City of
Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)).
Our review of Walker’s live pleading does not show he asserted the defense
of official immunity in the court below. Instead, Walker alleged he has the same
immunity as that enjoyed by the government. That allegation did not raise an
affirmative defense based on a claim of official immunity. See id. at 128–29 (stating
that because the appellant never asserted official immunity but asserted “the same
immunity [as] the government” the elements of that defense are not “satisfied[,]”
and they are not entitled to that defense.). Because Walker did not plead a claim
alleging official immunity, we do not reach his official immunity arguments in our
review. See Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 482 n.5 (Tex. 2018)
(explaining that because the appellant did not file a motion for summary judgment
based on official immunity in his individual capacity, any claims against him in his
individual capacity “remain[] pending before the trial court.”). We overrule
Walker’s first issue.
V. TTCA – Election of Remedies
In his second issue, Walker argues that the trial court erred when it denied his
plea to the jurisdiction and that he is entitled to a ruling dismissing Hartman’s suit
12 based on the TTCA election of remedies provision in section 101.106. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(a)–(f). Walker contends that when Hartman filed
his federal lawsuit suing Jefferson County and the State of Texas, the election he
made suing them was irrevocable. Walker concludes that under the TTCA, Hartman
is barred from litigating claims arising from the same subject matter of the suit he
filed against those entities in federal court against him individually.
The TTCA contains an election of remedies provision forcing plaintiffs at the
outset of their suits, to determine whether to sue governmental employees in their
individual capacity or to sue the governmental entity. See id.; see also Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). The TTCA
provides that once the plaintiff elects by filing suit, the TTCA “immediately and
forever” bars the plaintiff from suing others in the same capacity. Molina v.
Alvarado, 463 S.W.3d 867, 870 (Tex. 2015) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 101.106(a)–(b)). The Texas Supreme Court explained how the election of
remedies provision works in 2018, stating:
This [election of remedies] provision was incorporated into the TTCA to prevent plaintiffs from circumventing the TTCA’s damages cap by suing government employees, who were, at that time, not protected. It was expanded in 2003, as part of a comprehensive effort to reform the tort system, with the apparent purpose of forcing a plaintiff “to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment, such that the governmental unit is vicariously liable.” 13 Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 846 (Tex. 2018) (citations
omitted). The Texas Supreme Court has warned litigants to “proceed cautiously”
before initiating suit under the TTCA because the election has “irrevocable
consequences.” Garcia, 253 S.W.3d at 657.
Generally, Texas Rule of Civil Procedure 65 provides that any subsequent
amended pleadings supersede the original filing, but we must defer to the statute if
it contradicts the language in a rule. Univ. of Tex. Health Sci. Ctr. of Hous. v. Rios,
542 S.W.3d 530, 538 (Tex. 2017); see also Tex. R. Civ. P. 65. In 2017, the Texas
Supreme Court held that under the TTCA, any subsequent pleadings cannot avoid
the plaintiff’s irrevocable election to sue the governmental entity employer. See id.
at 538–39; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a). According to
Walker, the trial court erred when it rejected his election of remedies argument,
which he based on section 101.106(a) of the TTCA. We begin our analysis of
Walker’s argument by determining whether section 101.106(a) applies to Hartman’s
suit.
1. 101.106(a) – Individual Capacity
Section 101.106(a) of the TTCA provides that “[t]he 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 14 against any individual employee of the governmental unit regarding the same subject
matter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a). The statute specifically
states that an election occurs when the government employer is sued and bars
recovery against an individual employee of the governmental unit. See id. (emphasis
added). Our sister court in Houston explained that
[s]ection 101.106(a) refers to “[t]he filing of a suit under this chapter against a governmental unit;” it does not refer to the numerical designation in the caption of the pleading by which a plaintiff has filed suit against a governmental unit. The dispositive election occurs when the governmental employer is sued—regardless of whether the governmental employer is sued alone or in tandem with the employee, and regardless of whether the governmental employer is sued in the “original” petition or an “amended” petition.
Hintz v. Lally, 305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied).4 “[S]ubsection (a) bars suit against an employee in his individual capacity.”
Stinson v. Fontenot, 435 S.W.3d 793, 794 (Tex. 2014) (citation omitted). “[U]nder
subsection (a), suit against a governmental unit under the TTCA—i.e., filing a tort
claim against the governmental unit—bars suit against an ‘individual employee’ of
the unit regarding the same subject matter, regardless of whether immunity has been
4 In his brief, Hartman argues Hintz supports his argument claiming the TTCA’s election of remedies applies only to the first petition and not to the contents of amended petitions. We are unpersuaded by his argument: it contradicts Hintz. See Hintz v. Lally, 305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). 15 waived.” Ngakoue, 408 S.W.3d at 357 n.7 (citations omitted). It is well settled that
“[t]he plain language of the election-of-remedies provision, then, demonstrates that
a suit against the government triggers subsection (a)” and will bar a suit against an
employee in his individual, rather than official, capacity. Alexander v. Walker, 435
S.W.3d 789, 791 (Tex. 2014).
Hartman filed an original petition in federal court suing Walker, the State of
Texas, and Jefferson County. As a district judge, Walker is employed by the State
of Texas, not Jefferson County. See Bloom v. Bexar Cty., Tex., 130 F.3d 722, 725
(5th Cir. 1997) (citing Tex. Const. art. V, § 7) (“[S]tate judges are elected officials
of the State of Texas and are not agents, officials, or employees of the county.”). It
is undisputed that Hartman dismissed the State of Texas when he subsequently
amended his federal complaint.
That said, the original complaint Hartman filed in federal court included an
action against Walker and the State of Texas based on section 1983 of the Federal
Civil Rights Act. See 42 U.S.C. § 1983. Section 1983 provides a separate and distinct
legal basis from the Tort Claims Act for challenging the actions of a governmental
employee. See Thomas v. Allen, 837 S.W.2d 631, 632–33 (Tex. 1992); Brand v.
Savage, 920 S.W.2d 672, 675 (Tex. App.—Houston [1st Dist.] 1995, no pet.)
(“Moreover, state and federal constitutional claims are not barred by immunity. For
16 example, appellant could have circumvented the Tort Claims Act and its effects by
bringing a claim for violation of [their] constitutionally protected rights under 42
U.S.C. § 1983.”). “Section 1983 imposes liability for violations of rights protected
by the United States Constitution, not for violations of duties of care arising under
tort law.” Leo v. Trevino, 285 S.W.3d 470, 479 (Tex. App.—Corpus Christi 2006,
no pet.) (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994));
see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (explaining that section 1983
provides a “method for vindicating federal rights”). Based on Walker’s original
federal complaint, we conclude Hartman’s section 1983 claims are not claims under
the Tort Claims Act. See Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453
S.W.3d 411, 416 (Tex. 2015).
In his second amended complaint, Hartman dropped his allegations against
the State of Texas by failing to allege any claim against them. He sued Walker and
other individuals, however, for the “intentionally tortious misconduct of each and all
of the individual Defendants.” Hartman never asserted a claim against the State of
Texas triggering the TTCA. We conclude he is not barred by the election of remedies
from suing Walker individually for claims alleging a cause of action under the
TTCA. See Tex. Civ. Prac. & Rem. Code Ann. § 106.101(a), (e) (“(a) The filing of
a suit under this chapter against a governmental unit constitutes an irrevocable
17 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. . . . (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.” (emphasis added)).
Stated another way, “section 101.106’s door swings in just one direction.”
Hintz, 305 S.W.3d at 769. “This one-way door comports with the legislature’s goal
to address efforts to circumvent the Tort Claims Act’s limits by litigants who sued
governmental employees individually instead of their governmental employers.” Id.
(citation omitted) (emphasis added); see also Lenoir, 469 S.W.3d at 675 (citations
omitted) (“If the plaintiff sues the governmental unit, she is forever barred from
suing the governmental unit’s employees[,]. . . [b]ut claims against governmental
employees may be pursued if they do not fall within the election of remedies
categories created by section 101.106.”). For these reasons, we overrule Walker’s
claim alleging section 101.106(a) of the TTCA applies to Hartman’s suit.
2. 101.106(f) - Official Capacity
Last, Walker argues the TTCA’s election of remedies provision applies and
bars Hartman’s suit under 101.106(f) because Walker, as a judicial official and in
18 his official capacity, acted within the scope of his duties to “suppress[] disruption in
a courtroom and maintain[] order.”
Section 101.106(f) of the TTCA applies when someone sues a governmental
employee in his official capacity. Garza v. Harrison, 574 S.W.3d 389, 393 (Tex.
2019). “[B]ecause an official-capacity suit against a public employee is merely
another way of pleading an action against the governmental employer, on the
employee’s motion, section 101.106(f) compels an election that makes suit against
the governmental employer the exclusive remedy for a public employee’s conduct
within the scope of employment.” Id. at 399 (citations omitted). Subsection (f)
requires dismissal of a suit against a government employee (1) if the suit is based on
“conduct within the general scope of that employee’s employment” and, (2) “if it
could have been brought under this chapter against the governmental unit[.]” Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(f); see also Lenoir, 526 S.W.3d at 405.
Dismissal under section 101.106(f) is properly reviewed de novo. Garza, 574
S.W.3d at 400.
Whether subsection (f) applies to the facts that are at issue here hinges on
whether Hartman sued Walker in his official capacity. The first step is to determine
whether the pleadings allege facts showing that Walker acted within the course and
scope of his employment as a district judge when the conduct Hartman claims
19 actionable allegedly occurred. Officials act within the scope of their employment if
their acts fall within the duties they are generally assigned. Ollie v. Plano Indep. Sch.
Dist., 383 S.W.3d 783, 791 (Tex. App.—Dallas 2012, pet. denied) (citations
omitted).
The scope-of-employment analysis, therefore, remains fundamentally objective: Is there a connection between the employee's job duties and the alleged tortious conduct? 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 [their] job responsibilities.
Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017) (citation omitted). Thus, even
if acting to serve the purpose of a third person, as long as the employee’s conduct
“falls within the duties assigned,” the conduct is within the scope of employment.
Anderson v. Bessman, 365 S.W.3d 119, 125–26 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (citations omitted).
In his original federal complaint, Hartman never disputed Walker’s claim that
he was, at all relevant times, a State employee. Hartman now argues he is suing
Walker for Walker’s actions that Hartman argues occurred outside of Walker’s
scope of employment as a judge. For instance, Hartman suggests:
Walker’s misconduct against Mr. Hartman is totally outside the scope of his jurisdiction pursuant to his individual vendetta against Mr. Hartman and the rule of law. The destruction of evidence, the fabrication of evidence, the unlawful arrest and incarceration, the illegal search and seizure, the denial of Mr. Hartman’s right to counsel, 20 excessive force, malicious prosecution, defamation per se, acts of official oppression, etc., are all outside of the scope of [Walker’s] jurisdiction[.]
Hartman states that these actions by Walker, along with the other defendants in the
lawsuit, show they acted in a “criminal conspiracy,” that caused Hartman to be
maliciously prosecuted.
We turn to opinions issued by courts discussing the meaning of the term
“scope of employment” to guide our resolution of whether the trial court should have
dismissed Hartman’s suit based on Walker’s claim that his actional conduct occurred
completely within his duties as a district judge. One of our sister courts has
explained:
As defined in the TTCA, “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.” An official acts within the scope of his authority if he is discharging the duties generally assigned to him. The dispositive question is: “[I]n what capacity was the officer acting at the time he committed the acts for which the complaint was made?”
McFadden v. Olesky, 517 S.W.3d 287, 296 (Tex. App.—Austin 2017, pet. denied)
(citations omitted). Generally, an employee’s scope of employment includes conduct
the employee engages in while carrying out an assigned task even if the employee’s
conduct “escalates beyond that assigned or permitted.” Fink v. Anderson, 477
S.W.3d 460, 466 (Tex. App.—Houston [1st Dist.] 2015, no pet.). 21 Under section 101.106(f) of the TTCA,
the plaintiff can be compelled to switch targets from the governmental employee to the governmental employer if ‘suit is filed against an employee . . . based on conduct within the general scope of that employee’s employment and if it could have been brought under [the Texas Tort Claims Act] against the governmental unit.’
Hintz, 305 S.W.3d at 769 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f)).
And the burden to demonstrate that suit “could have been brought under this chapter”
against the governmental employer falls on the employee claiming he acted within
the scope of his employment. Id. An employee must satisfy that burden to obtain an
order dismissing the suit under section 101.106(f). Id. at 767.
Here, Walker did not provide the trial court with any evidence to support his
First Amended Motion to Dismiss for Lack of Subject Matter Jurisdiction. In a prior
opinion, we explained that Hartman’s allegations that Walker engaged in a civil
conspiracy and prosecuted him maliciously following Hartman’s arrest, if proven
true, is conduct that could fall outside Walker’s scope of employment as a judge.
We agree with Walker that he had every right to control order in his courtroom
and that his power to accomplish that task fell within his duties as a judge; however,
retaliatory actions Hartman alleges Walker took by allegedly joining in a civil
conspiracy, or by prosecuting Hartman maliciously, may indeed be shown to be
conduct that falls outside the duties Walker had as a judge. See Walker I, 516 S.W.3d
22 at 83–84. We conclude Walker failed to carry his burden to produce evidence
showing Hartman could have brought his claims under the TTCA against the State.
See Tex. Civ. Prac. & Rem. Code. Ann. § 101.106(f); Alexander, 435 S.W.3d at 792.
For these reasons, we overrule Walker’s issues based on sections 101.106(a)
and (f) of the TTCA.
VI. Conclusion
Having overruled all of Walker’s issues, we affirm the trial court’s order
denying Walker’s plea.
AFFIRMED.
_________________________ CHARLES KREGER Justice
Submitted on September 12, 2019 Opinion Delivered March 26, 2020
Before McKeithen, C.J., Kreger and Horton, JJ.