In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-21-00382-CV NO. 09-21-00383-CV ________________
REMA CHARLES WOLF AND ABRAHAM WOLF, Appellants
V.
RONNIE MICKENS, DEBORAH VERRET, AND DARLENE THOMAS PIERRE, Appellees
________________________________________________________________________
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause Nos. D-206,579 and B-206,580 ________________________________________________________________________
MEMORANDUM OPINION
In an interlocutory appeal, Rema Charles Wolf and Abraham Wolf
(“Plaintiffs” or collectively “Wolf”) appeal from the trial court’s order granting
Ronnie Mickens, Deborah Verret, and Darlene Thomas Pierre’s (the Employees)
Plea to the Jurisdiction under the Texas Tort Claims Act (TTCA) section 101.106(f).
See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(8); 101.106(f). Following a
1 hearing, the trial court concluded that the Employees were entitled to governmental
immunity under the TTCA. Id. § 101.106(f).
In several issues on appeal, Wolf challenges the trial court’s dismissal,
arguing that the Employees committed ultra vires acts that fall outside the TTCA’s
immunity; there are fact issues as to whether the actions of the Employees are within
the scope of their employment as required by section 101.106(f); and the trial court
failed to rule on all her claims. We affirm in part and reverse and remand in part.
Background
On November 13, 2020, Wolf filed two pro se Original Petitions in the 136th
District Court of Jefferson County and the 60th District Court, against Mickens,
Verret and Pierre, employees with the City of Port Arthur, Texas in two separate
cause numbers, B-206,850 and D-206,579.1 Among several issues, Wolf complained
about “fraud[,]” arguing that the Employees prevented her from repairing a
hurricane-damaged commercial building she bought at a sheriff’s auction. Wolf
alleged that Mickens and Verret promised to provide permits for her to repair her
building, with no intention of issuing permits, and ultimately attempted to get
1 Prior to judgment, the trial court consolidated Cause Number B-206,580, Rema Charles Wolf v. Darlene Thomas Pierre, which was originally assigned to the 60th District Court, into Trial Cause Number D-206,579, Rema Charles Wolf v. Ronnie Mickens and Deborah Verret, the first-filed case assigned to the 136th District Court. The presiding judge of the 136th District Court signed a single judgment that disposed of both Cause Number D-206,579 and Cause Number B- 206,580. Wolf challenges this consolidation on appeal. 2 “bribery money” from her. Wolf contends that after the Employees did not receive
the alleged bribery money, the Construction Board of Adjustments and Appeals (the
Board) conducted a hearing. Both the Employees and Wolf spoke at the hearing.
Following the hearing, the Board determined the building should be demolished.
Several months later, the City of Port Arthur demolished her building.
In her petitions, Wolf alleged that because the Employees “took Plaintiff’s
constitutional right away and illegally took, damage[d], and destroyed Plaintiff’s
property under Article 1 Section 17[]” of the Texas Constitution, she is seeking
damages of at least $1,500,000. She also alleged that the Employees harassed her,
and that their actions consisted of intentional infliction of emotional distress; she
requested a judgment against the Employees for “the full amount of her damages[]”
including court costs, and pre- and post-judgment interest, and “such other and
further relief, special and general, at law and in equity, to which Plaintiff may show
herself justly entitled.”
The Employees filed a Plea to the Jurisdiction/Motion to Dismiss – TCPRC
101.106(f), Motion to Consolidate, Original Answer and Affirmative Defenses,
arguing that the Employees were entitled to dismissal of this suit because, under the
TTCA 101.106(f), a suit filed against an employee of a governmental unit, based on
conduct within the general scope of the employee’s employment, which could have
been brought against the governmental unit, is considered to be against the employee
3 in the employee’s official capacity and shall be dismissed upon motion of the
employee. The Employees attached documents and correspondence sent to Wolf
regarding the condition of the building. These documents stated that the building
was deemed “unsafe and represents a threat to public health, safety and welfare[]”
and was scheduled for demolition. The Employees also attached an Order Granting
Defendant’s Plea to the Jurisdiction and Motions for Summary Judgment in Cause
number D-202,920, in which Wolf sued the City of Port Arthur for damages from
the demolition of the same building.2 The Employees argued that Plaintiffs’
pleadings were insufficient on their face to establish any waiver of governmental or
sovereign immunity by the City to allow the Employees to be sued in their individual
capacity. The Employees also alleged that, because the official capacity claim is a
claim against the City of Port Arthur and all of Plaintiffs’ allegations involve
intentional torts, the claims are barred by governmental immunity, which immunity
has not been waived. Therefore, according to the Employees, there is a lack of
subject matter jurisdiction over those claims.
2 Wolf had previously brought suits against the City of Port Arthur for demolishing this building and we affirmed the judgments dismissing Wolf’s claims. See Wolf v. City of Port Arthur, No. 09-20-00236-CV, 2022 WL 2068819 (Tex. App.—Beaumont June 9, 2022, pet. denied) (mem. op.) (Wolf I); Wolf v. City of Port Arthur, No. 09-21-00371-CV, 2023 WL 2802254 (Tex. App.—Beaumont Apr. 6, 2023, no pet.) (mem. op.). 4 In August 2021, an attorney filed a notice that he was representing the
Plaintiffs in the suit. On November 3, 2021, in a reply to the Employees’ Amended
Plea to the Jurisdiction, Wolf’s attorney filed a response to the defendants’ amended
pleas to the jurisdiction and motion to dismiss, arguing that Wolf’s building was
“taken and destroyed [f]or or applied to public use[,]” without adequate
compensation. On the same day, Wolf’s attorney filed an amended petition, in which
he alleged that Mickens told her “…that a permit would be granted to repair the
Proctor Street property in exchange of a payment of $25,000.00.” The amended
petition also alleges that Verrett and Pierre “knew about this offer and insisted on its
payment.”
In the amended petition, Wolf alleged that because she viewed the demand as
a bribe, she declined to pay it, and after that, the defendants “refused to give [Wolf]
a permit and [her] property was demolished by the City[.]” Wolf’s amended petition
includes a claim of fraud and describes the money that the defendants demanded as
“bribery money.” She again alleged fraud and argued that the Employees attempted
to solicit bribes from her. Wolf contended that when the alleged bribery attempt
failed, the Employees “went and granted money from the City to pay the contractor
to demolish the building.” According to Wolf, the Employees’ unlawful actions were
the proximate cause of her damages and constituted a taking of Wolf’s property in
violation of Article 1, Section 17 of the Texas Constitution. Along with her request
5 for actual and exemplary damages, Wolf requested declaratory relief under the
Uniform Declaratory Judgment Act.
The following day, the Employees filed a Supplemental Plea to the
Jurisdiction/Motion to Dismiss – TCPRC 101.106(f), arguing that there was no
“ultra vires waiver of immunity[,]” and that Wolf’s assertions in her amended
petition, alleging ultra vires acts by the Employees, do not “establish waiver of
sovereign/governmental immunity through the ultra vires exception.” The
Employees again asserted the trial court lacked subject matter jurisdiction over
Wolf’s Article I, Section 17 claim because the claim was barred by governmental
immunity and the immunity of the Employees had not been waived.
After a hearing on November 10, 2021, the District Court granted the
Employees’ Plea to the Jurisdiction/Motion to Dismiss – TCPRC 101.106(f).
Appellants filed this appeal. We address the issues raised on appeal but consider
them as part of three categories: the consolidation of both cases; the trial court’s
ruling on the Texas Tort Claims Act “ultra vires” claims; and the trial court’s ruling
relating to the alleged claims under the Texas Constitution, Article 1, Section 17.
Consolidation
We begin with Wolf’s challenge to the trial court’s order consolidating the
two cases. Wolf argues that by consolidating the cases the trial court failed to decide
or address her petition she filed in cause number D-206-579.
6 Wolf initially filed two petitions against the Employees, one petition in cause
number D-206,579 against Mickens and Verret on November 13, 2020, and one
petition in cause number B-206,580 against Pierre on the same date. In May 2021,
the Employees filed a joint Plea to the Jurisdiction, Answer, and Motion to
Consolidate the cases. In September 2021, the trial court granted the Motion to
Consolidate, ordering B-206,580 to be consolidated with D-206,579. In November
2021, Wolf filed an amended petition, the live petition before this Court, under both
cause numbers. In the amended petition, Wolf named all three employees in the style
of the case and in the body of the petition. At the hearing on the Employees’ Plea to
the Jurisdiction, Wolf did not object to the consolidation. That same month, the trial
court granted the Employees’ plea to the jurisdiction, listing both cause numbers in
the style of the order. The order was filed under D-206,579. Finally, in December
2021, Wolf filed a motion titled “Plaintiff[’s] finding of fact and conclusion of law,”
which notes in the style of the petition “consolidated in to, Cause; B-206,580, D-
206[,]578[.]”
Rule 174 of the Texas Rules of Civil Procedure and Local Civil Rule 6 govern
the consolidation of civil cases filed in district courts in Jefferson County. See Tex.
R. Civ. P. 174(a); Jefferson (Tex.) Civ. Dist. Ct. Loc. R. 6(B), (D). Rule 174(a)
provides:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the 7 matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Tex. R. Civ. P. 174(a).
Local Rule 6(B) of the Jefferson County local rules provides:
All consolidations of cases shall be into the earliest-filed case, and shall remain pending on the docket of the court in which that case was originally filed. Any and all motions for consolidation shall be heard and decided only by the presiding judge of the court in which the earliest-filed case was filed.
Jefferson (Tex.) Civ. Dist. Ct. Loc. R. 6(B).
Rules involving similar parties and multiple filings are intended to provide a
clear rule that avoids quarrels over which court’s rulings should be given priority.
“The general common law rule in Texas is that the court in which suit is first filed
acquires dominant jurisdiction to the exclusion of other coordinate courts.” Curtis v.
Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Generally, if a party calls the pendency of
the prior suit to the trial court’s attention, the trial court must either abate or dismiss
the case. Id. If the court presiding over the second-filed case attempts to interfere
with the first-filed case, mandamus relief is appropriate “to settle the conflict of
jurisdictions.” Id; see also In re SWEPI, L.P., 85 S.W.3d 800, 809 (Tex. 2002).
In her brief, Wolf addresses this issue in her “Issues presented and summary
of the argument[.]” In this section, Wolf simply states there are fact issues regarding
whether the trial court addressed the original petition in D-206,579. The record
8 shows the trial court consolidated the two cases months before the final order was
entered. Wolf’s amended petition was filed after the consolidation of the two cases
and she included both cause numbers and all parties listed in the petition. Wolf failed
to object to the consolidation of the two cases. Wolf’s amended petition filed after
the trial court signed the order of consolidation states in the style of the heading that
both cause numbers are “consolidated.” Finally, it is undisputed that the petitions
under D-206,579 and B-206,580 involved “a common question of law or fact.” Tex.
R. Civ. P. 174(a). Wolf’s claims in cause numbers D-206,579 and B-206,580 were
consolidated, and her live pleading at the time the trial court granted the Employees’
Plea to the Jurisdiction, and on appeal, was Plaintiffs’ Amended Original Petition
filed on November 3, 2021. Therefore, we overrule Wolf’s complaints pertaining to
consolidation of the cases. We reject her argument that by consolidating the cases
the trial court failed to decide or address her claims filed in cause number D-206-
579.
TTCA
Wolf challenges the trial court’s order granting the Employees’ Plea to the
Jurisdiction under the TTCA alleging “fraud, bribery, harassment[,] and [intentional]
infliction of emotional distress.” Wolf argues the trial court erred by granting the
Employees’ Plea to the Jurisdiction under section 101.106(f). Tex. Civ. Prac. &
Rem. Code Ann. § 101.106(f). Specifically, Wolf argues that there is a “fact issue”
9 as to whether the Employees were acting within the scope of their employment in
relation to her allegation of “fraud, bribery, harassment[,] and [intentional] infliction
of emotional distress.” Wolf contends that the Employees’ “ultra virus [sic] acts[,]”
were “outside the lawful authority of public servant[s]” when the Employees
allegedly attempted to solicit bribes from Wolf, defrauded Wolf, and harassed her
and her family while denying her a permit.
Sovereign and governmental immunity exist to protect the State and its
political subdivisions from lawsuits and liability for money damages. Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Tex. Nat. Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Without an
express waiver of sovereign or governmental immunity, courts do not have subject-
matter jurisdiction over suits against the State or its political subdivisions. See State
v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006); Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 224-25 (Tex. 2004).
The TTCA provides a limited waiver of immunity and has an election-of-
remedies provision that is intended to force a plaintiff at the outset of the plaintiff’s
suit to determine whether to sue a responsible employee of a governmental unit in
the defendant’s individual capacity because the defendant is solely liable, or to sue
a governmental unit because the employee acted within the scope of his
employment. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106; Garza v. Harrison,
10 574 S.W.3d 389, 399-400 (Tex. 2019); Laverie v. Wetherbe, 517 S.W.3d 748, 752
(Tex. 2017). If a plaintiff sues a public employee in only that employee’s official
capacity for conduct within the scope of employment, the employee can force the
plaintiff to dismiss the suit against the employee and to file an amended petition
against the governmental unit, because an official-capacity suit against an employee
is merely another way to plead a cause of action against a governmental employer.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f); Garza, 574 S.W.3d at 399-400.
Section 101.106(f) states:
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 Ann. § 101.106(f). To be entitled to a dismissal under
101.106(f), the defendant employee must establish (1) he is an employee of a
governmental unit, (2) the plaintiff’s suit was based on conduct within the scope of
the employee’s employment with a governmental unit, and (3) the suit could have
been brought against the governmental unit under the TTCA. See id.; Laverie, 517
S.W.3d at 752. We review a trial court’s ruling on a motion to dismiss under section
101.106(f) de novo. Garza, 574 S.W.3d at 400.
11 In her brief, Wolf argues that the trial court erred by granting the Employees’
Plea to the Jurisdiction because the Employees acted in an ultra vires manner, an
exception to governmental immunity found in section 101.106(f). Wolf cites to City
of El Paso v. Heinrich to support her position, stating it supports her claim that “[a]
party can maintain a suit to determine its rights without legislative permission[]”
found in section 101.106. 284 S.W.3d 366, 370 (Tex. 2009).
“A suit against a governmental employee in an official capacity is effectively
a suit against the employing governmental unit, except in those cases alleging the
employee has acted ultra vires.” Garza, 574 S.W.3d at 399.
Governmental immunity provides broad protection to the state and its officers, it will not bar a suit against a governmental officer for acting outside his authority—i.e., an ultra vires suit. To qualify under the ultra vires exception, a suit cannot complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.
City of Port Arthur v. Thomas, 659 S.W.3d 96, 110 (Tex. App.—Beaumont 2022,
no pet.) (internal citations omitted); see also Williams v. Valdez, No. 05-18-00213-
CV, 2020 WL 2897181, at *3 (Tex. App.—Dallas June 3, 2020, no pet.) (mem. op).
As this Court has acknowledged, Heinrich supports the proposition that ultra
vires acts are not subject to governmental immunity, but we noted that the Supreme
Court of Texas had clarified Heinrich and what it means for a government employee
to act outside his official capacity. City of Willis v. Garcia, 523 S.W.3d 729, 743
12 (Tex. App.—Beaumont 2017), aff’d on other grounds, 593 S.W.3d 201 (Tex. 2019)
(citing Heinrich, 284 S.W.3d at 372). In City of Willis, we explained that ultra vires
acts, or acts without authority, are not acts of the State at all, but “[m]ere allegations
that an official is not fully complying with regulatory requirements [is] insufficient
to invoke the ultra vires exception to the exhaustion requirement.” Id. at 744.
Wolf argues that her claims of fraud, harassment, and intentional infliction of
emotional distress are based on ultra vires acts by the Employees and Wolf seeks
exemplary damages from the Employees for conduct that occurred while she was
attempting to rehabilitate her commercial property. Wolf’s live pleadings at the time
of trial do not assert a claim of harassment and intentional infliction of emotional
distress, but she does allege that the Employees acted “ultra vires” by seeking to
solicit money for a building permit, she mentions fraud, and alleges violations of
Article 1, Section 17 of the Texas Constitution. “Our rules provide that amended
pleadings and their contents take the place of prior pleadings.” FKM P’ship, Ltd. v.
Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008) (citing Tex.
R. Civ. P. 65). “So, causes of action not contained in amended pleadings are
effectively dismissed at the time the amended pleading is filed[.]” See id. (citation
omitted). If any causes of action are in the original and not addressed in the amended
petition they are effectively dismissed. See id. Consequently, we will address only
those claims found in the amended petition in our analysis today.
13 Ultra Vires
Wolf’s “ultra vires” allegations in her amended petition are that the
Employees committed fraud and entered into a conspiracy to solicit a bribe in
exchange for regulatory permits for her commercial building. In her amended
petition, Wolf seeks monetary damages from the Employees due to alleged ultra
vires acts. “Merely asserting legal conclusions or labeling a defendant’s actions as
‘ultra vires,’ ‘illegal,’ or ‘unconstitutional’ does not suffice to plead an ultra vires
claim[.]” Williams, 2020 WL 2897181, at *3; see also Tex. Dep’t of Transp. v. Sunset
Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.—Austin 2011, no pet.). An ultra vires
claim requires proof that the government officer acted without legal authority or
failed to perform a purely ministerial act. Heinrich, 284 S.W.3d at 371-74. In
addition, such claims if successful only allow for prospective injunctive relief, not
retrospective monetary relief for alleged harm that results. Id. Wolf seeks monetary
damages for the loss of her building, not prospective relief. As such, her claims of
fraud and civil conspiracy are not actionable as ultra vires acts. See Johnson v.
Cullens, No. 07-21-00093-CV, 2022 Tex. App LEXIS 1556, at *7 (Tex. App.—
Amarillo Mar. 7, 2020, pet. denied (mem. op.) (“Without a valid ultra vires claim
against [the county employee], [Appellant] cannot rely on the ultra vires exception
to waive governmental immunity.”).
14 Intentional Torts
Official Capacity
As we noted above, fraud and civil conspiracy are intentional torts. See
Jaramillo v. City of Tex. City, No. 01-20-00654-CV, 2022 Tex. App. LEXIS 910, at
**10-11 (Tex. App.—Houston [1st Dist.] Feb. 8, 2022, no pet.) (fraud and civil
conspiracy are intentional torts); City of Richardson v. Cannon, No. 05-18-00181-
CV, 2018 Tex. App. LEXIS 9376, at *4 (Tex. App.—Dallas Nov. 16, 2018, no pet.)
(mem. op.) (“Fraud is an ‘intentional tort.’”); Agar Corp., Inc., v. Electro Circuits
Int’l. LLC., 550 S.W.3d 136, 142 (Tex. 2019) (civil conspiracy is an intentional tort).
Intentional torts against a government unit or against individual employees in their
official capacities are not subject to the TTCA’s limited waiver. See Tex. Civ. Prac.
& Rem. Code Ann. § 101.057(2) (“arising out of assault, battery, false
imprisonment, or any other intentional tort . . . .”); Abron v. Obioha, No. 09-20-
00126-CV, 2021 Tex. App. LEXIS 9007, at *7 (Tex. App.—Beaumont Nov. 4,
2021, no pet.) (mem. op.) (“Section 101.106 ‘bars any action[,]’ including an
intentional tort[.]”); Agnew v. Gonzales, No. 11-19-00249-CV, 2021 Tex. App.
LEXIS 6297, at *9 (Tex. App.—Eastland Aug. 5, 2021, no pet.) (mem. op) (“All
common law torts, including intentional torts, that are asserted against a
governmental unit are subject to the provisions of the TTCA.”); City of Watauga v.
Gordon, 434 S.W.3d 586, 589 (Tex. 2014) (the TTCA’s limited waiver does not
15 apply to intentional torts). Wolf alleged that fraud is not waived by the TTCA.
Wolf’s claims of fraud and civil conspiracy fail against the Employees in their
official capacities. See Hous. Forensic Sci. Ctr., Inc. v. Barette, No. 01-19-00129-
CV, 2019 Tex. App. LEXIS 9744, at *6 (Tex. App.—Houston [1st Dist.] Nov. 7,
2019, no pet.) (mem. op.) (rejecting an Appellant’s ultra vires claim when the claim
alleged an intentional tort not waived by the TTCA, and “[Appellant] did not allege
any ultra vires acts or any other basis for a waiver of immunity.”). Therefore, the
Employees continue to possess immunity against these claims to the extent the
conduct was performed in their official capacities. See Franka v. Velasquez, 332
S.W.3d 367, 379 (Tex. 2011); Bangmon v. Jones, No. 09-22-00221-CV, 2023 Tex.
App. LEXIS 4658, at *8 (Tex. App—Beaumont June 29, 2023, no pet.) (mem. op)
(“Defendants’ actions were intentional torts, and the TTCA does not waive
immunity for intentional torts.”); Jarmillo, 2022 Tex. App. LEXIS 910, at **10-11;
Agnew, 2021 Tex. App. LEXIS 6297, at *9 (“[A]ll tort claims, including intentional
tort claims that are asserted against individual government actors, necessarily ‘could
have been brought’ against the relevant governmental unit, regardless of whether the
governmental unit’s own immunities might ultimately bar the claim.”). As noted by
Jarmillo and Agar, civil conspiracy is not a stand-alone tort and must be supported
by an underlying tort. Jarmillo, 2022 Tex. App. LEXIS 910, at **10-11; Agnew,
2021 Tex. App. LEXIS 6297, at **8-9. Here, any claims of intentional torts against
16 the individual employees in their official capacity that could have been brought
against the government unit are barred.
Individual Capacity
To the extent Plaintiff’s amended petition also asserts a claim against the
Employees in their individual capacity, we must still examine whether the trial court
erred when it granted the Employees’ plea to the jurisdiction for Wolf’s claims of
fraud and civil conspiracy against the Employees in their individual capacities.
A government employee is entitled to dismissal if the suit could have been
brought against the governmental unit. Tex. Civ. Prac. & Rem. Code Ann. §
101.106(f). The phrase “under this chapter” includes suits for which immunity is not
waived. Franka, 332 S.W.3d at 379. But an employee is always individually liable
for torts even if committed during the course of employment, in his individual
capacity. Id. Intentional torts may be within the scope of employment if “the course
of conduct in which the tort occurred is within the scope of employment.”
Restatement (Third) of Agency § 7.07 cmt. c (Am. L. Inst. 2006). The current
version of section 101.106 protects employees in their individual capacities. See
Franka, 332 S.W.3d at 381 (“This construction of section 101.106(f) does, however,
foreclose suit against a government employee in his individual capacity if he was
acting within the scope of employment.”). If an employee commits a tort while
performing work assigned by the employer or while acting within the scope of his
17 employer’s control, the employee’s conduct is within the scope of employment
unless the employee was engaged in an independent course of conduct not intended
to further any purpose of the employer. See Mason v. Wood, No. 09-12-00246-CV,
2013 Tex. App. LEXIS 2692, *7 (Tex. App.—Beaumont March 14, 2013, no pet.)
(citing Restatement (Third) of Agency § 7.07 cmt. b (Am. L. Inst. 2006).
In this case, Wolf alleged the Employees committed fraud and civil
conspiracy in refusing to issue permits for her commercial property and by
attempting to solicit a bribe. There is no evidence in the record before us showing
that the City of Port Arthur approved or directed its Employees to solicit a $25,000
payment for the permit in question nor is there evidence showing this payment was
intended to further the purpose of the Employees’ employer, i.e. the City of Port
Arthur. While the alleged conversations may be disputed and the Employees may
later seek summary judgments or dismissals by other avenues, the allegations against
the Employees in their individual capacity acting outside the scope of their authority
would not be barred by governmental immunity. Therefore, the trial court erred by
granting the Employees’ plea to the jurisdiction, in their individual capacities, as the
TTCA does not waive liability for intentional torts alleged against employees in their
individual capacities. Franka, 332 S.W.3d at 383 (“[P]ublic employees (like agents
generally[)] have always been individually liable for their own torts, even when
18 committed in the course of employment, and suit may be brought against a
government employee in his individual capacity.”).
We affirm the trial court’s granting of the employees’ plea to the jurisdiction
under the TTCA for any claims of intentional torts against the individual employees
in their official capacity for conduct within the general scope of the employee’s
employment. However, we reverse and remand the trial court’s granting of the
employees’ plea to the jurisdiction under the TTCA for Wolf’s claim that the
Employees committed fraud and civil conspiracy in refusing to issue permits for her
commercial property and by allegedly attempting to solicit a bribe.
Texas Constitution, Article 1, Section 17
Next, we address Wolf’s contention that the Employees violated Article 1,
section 17 of the Texas Constitution because their actions consisted of an unlawful
taking of her property when the City of Port Arthur condemned and demolished her
building.
In Wolf’s amended petition, she alleges the following regarding her
constitutional takings claim: “Defendants’ actions were a proximate or producing
cause of actual damages to Plaintiffs in the sum of over one million dollars. These
actions also resulted in an unlawful taking of Plaintiffs’ property in violation of
Article I, Section 17 of the Texas Constitution.”
19 Wolf does not allege whether her takings claim is against the Employees
individually or in their official capacity, nor does she provide any allegations in her
pleadings that this is an ultra vires claim. Our decision in Wolf’s prior case against
the City of Port Arthur in which she makes the same allegations against the City of
Port Arthur controls this analysis. See Wolf v. City of Port Arthur, No. 09-20-00236-
CV, 2022 WL 2068819, at *3 (Tex. App.—Beaumont June 9, 2022, pet. denied)
(mem. op.). In Wolf I, we held that Wolf’s claims under article I, section 17 fail
because she did not pursue a direct appeal from the city’s administrative decision to
demolish her building. Id. Similarly, any claims that Wolf had against the Employees
for this allegation should have been pursued in a direct appeal from her
administrative hearing. 3 Id. We overrule this issue.
Remaining Issues
In her remaining issues, Wolf outlines several allegations against the
Employees, including their failure to provide permits, failure to give direction on
3 Wolf also alleges in her brief that there is “a fact issue that [the] lawsuit against the city employees it doesn’t control by government rules 214.0012 [] have 30 days limitation to be filed with the [] District Court that which is the [W]olf family timely filed their lawsuit against [M]ickens, and Deborah [Verret].” We find this argument somewhat confusing as stated in Wolf’s brief. That said, we addressed the merits of a similarly stated issue in Wolf I. See Wolf, 2022 WL 2068819, at *3. In Wolf I, we held that Wolf was jurisdictionally barred from pursuing any claims against the City of Port Arthur because she did not pursue a direct appeal after her administrative hearing and decision by the City’s administrative determination to demolish her building. Id. 20 how to “fix the building from the inside and outside[,]” and failure to send her notice
by certified mail of the Board of Construction Adjustment and Appeal hearing, as
well as violations of the restraining order Wolf obtained to stop the demolition of
her building.
These allegations or complaints do not assert separate causes of action and
were not part of Wolf’s amended petition. Any claims outside of the amended
petition are beyond our scope of review. See Hudspeth Cnty. v. Ramirez, 657 S.W.3d
103, 109 n.5 (Tex. App.—El Paso 2022, no pet.) (quoting Matzen v. McLane, 604
S.W.3d 91, 100 (Tex. App.—Austin 2020), aff’d in part, rev’d in part, No. 20-0523,
2021 WL 5977218 (Tex. Dec. 17, 2021) (“When a party files an amended pleading
after a hearing has been held on the plea but before the trial court’s ruling, and the
court’s order reflects that it reviewed the parties’ pleadings, the amended pleadings
are considered the live pleadings before the trial court when it ruled on the plea.”).
Wolf also did not raise these contentions in the lower court, so she may not do so for
the first time on appeal. See FKM P’ship, Ltd., 255 S.W.3d at 633; Tex. R. App. P
33.1(a)(1)(A). For the reasons explained above, we overrule Wolf’s remaining
issues.
Conclusion
As discussed more fully above: (1) we overrule Wolf’s complaint about the
consolidation of the cases; (2) we affirm the trial court’s granting of the employees’
21 plea to the jurisdiction under the TTCA for any intentional torts against the
individual employees in their official capacity for conduct within the general scope
of the employee’s employment; (3) we reverse and remand the trial court’s granting
of the employees’ plea to the jurisdiction under the TTCA for Wolf’s claim that the
Employees committed fraud and civil conspiracy in refusing to issue permits for her
commercial property and by allegedly attempting to solicit a bribe to the extent these
claims are made against the Employees in their individual capacity for conduct
outside the general scope of the employee’s employment; (4) we overrule Wolf’s
issue that the actions by the Employees resulted in an unlawful taking of Plaintiffs’
property in violation of Article 1, section 17 of the Texas Constitution; and (5) we
overrule Wolf’s remaining issues, because those claims were not contained in her
amended live pleading in the trial court, and were not preserved for our review on
appeal. Therefore, we affirm in part and reverse and remand in part Wolf’s issues on
appeal consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
JAY WRIGHT Justice
Submitted on August 17, 2023 Opinion Delivered August 29, 2024
Before Golemon, C.J., Wright and Chambers, JJ.