Roy Garcia v. Juan Guerra, Individually

• Court: Court of Appeals of Texas
• Decided: March 23, 2023
• Docket: 13-21-00166-CV
• Status: Published

Opinion

NUMBER 13-21-00166-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ROY GARCIA, Appellant,

v.

JUAN GUERRA, INDIVIDUALLY, Appellee.

On appeal from the 398th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Tijerina

Appellant Roy Garcia appeals the trial court’s judgment granting appellee Juan

Guerra’s motion to dismiss with prejudice under § 101.106(f) of the Texas Tort Claims

Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (providing for the dismissal

of a suit against an employee of a governmental unit based on conduct within the general

scope of that employee’s employment if the suit could have been brought against the governmental unit). By two issues, which we have renumbered, Garcia argues dismissal

was improper because: (1) Guerra did not conclusively prove he was acting within the

course and scope of employment at the time he committed the tortious conduct, and (2)

Garcia did not file his suit under the TTCA against a governmental unit and an employee.

See generally TEX. CIV. PRAC. & REM. CODE ANN. § 101.106. We affirm.

I. BACKGROUND

Garcia was the former public works director for the City of Pharr (the City), and

Guerra was the City Manager. On April 1, 2017, Guerra sent Garcia a letter accusing

Garcia of “having impermissibly altered the City’s official budget spreadsheet” and

“tampering [with] a government document in violation of [§] 37.10 of the Texas Penal

Code.” See TEX. PENAL CODE ANN. § 37.10 (“Tampering With Governmental Record”).

Guerra terminated Garcia that same day.

On September 6, 2017, Garcia executed a charge of discrimination with the Texas

Workforce Commission (TWC), but TWC dismissed the claim.

On May 11, 2018, Garcia sued the City and Guerra, individually. Garcia sued the

City for unlawful employment discrimination under Chapter 21 of the Labor Code. See

generally TEX. LAB. CODE ANN. § 21.051. Garcia sued Guerra individually, asserting

slander per se and intentional infliction of emotional distress. According to Garcia’s

petition, Guerra accused Garcia of criminal acts and made those statements outside the

scope of Guerra’s employment, causing Garcia severe emotional distress. Garcia

attached his TWC charge of discrimination and TWC’s notice of dismissal.

2 The City and Guerra filed a motion to dismiss, asserting Guerra should be

dismissed pursuant to § 101.106(e) and (f) of the Texas Civil Practice and Remedies

Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e), (f). According to the City,

Garcia’s allegations stem from Guerra’s findings and conclusions as a result of an

investigation Guerra performed in his role as City Manager. Garcia responded explaining

that § 101.106(e) did not apply because he did not file suit under the TTCA; rather, he

sued the City pursuant to the labor code. Additionally, he asserted § 101.106(f) was

inapplicable because Guerra was not acting within the scope of his employment when the

complained-of conduct occurred.

The City responded that dismissal was proper under § 101.106(f) because the

complained-of conduct was within the scope of Guerra’s employment.1 Garcia replied,

asserting that defaming a former employee was outside the scope of Guerra’s

employment, and Garcia attached a list of the City Manager’s powers and duties as set

forth in the City’s code of ordinances. The City responded and attached Garcia’s original

petition wherein Garcia alleged that Guerra “told other City employees that the reason

[Garcia] stopped working for the City was because [Garcia] had committed the criminal

act of tampering with governmental records.”

On October 26, 2020, the trial court held a hearing on the City’s and Guerra’s

1 Garcia filed suit against the City for unlawful discrimination pursuant to the Texas Labor Code. See TEX. LAB. CODE ANN. § 21.051. The City conceded that dismissal under § 101.106(e) was improper because Garcia did not file suit against the City under the TTCA, and the City amended its motion to dismiss, removing § 101.106(e) as a ground for dismissal. Therefore, we do not address Garcia’s second issue regarding whether dismissal was improper under § 101.106(e).

3 motion to dismiss. The trial court granted the motion to dismiss, severed Garcia’s claims

of slander and intentional infliction of emotional distress, and dismissed with prejudice

Garcia’s suit against Guerra individually. Garcia now appeals.

II. APPLICABLE LAW AND STANDARD OF REVIEW

The TTCA includes a comprehensive election-of-remedies scheme that requires

plaintiffs to sue either the governmental unit or its employee individually, not both. See

id.; Univ. of Tex. Health Sci. Ctr. at Hous. v. Rios, 542 S.W.3d 530, 536–37 (Tex. 2017).

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 against

the governmental unit, the suit is considered to be against the employee in the employee’s

official capacity only. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). 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. See id.

Section 101.106(f) completely “foreclose[s] suit against a government employee in

his individual capacity if he was acting within the scope of his employment.” Franka v.

Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). An employee must establish the following

to be entitled to dismissal: (1) the employee was an employee of a governmental unit; (2)

the employee was acting within the general scope of his employment; and (3) the suit

could have been brought under the TTCA against the governmental unit. See id. “A

motion to dismiss filed by an employee of a governmental unit pursuant to [§] 101.106(f)

4 is a challenge to the trial court’s subject-matter jurisdiction, which we review de novo.”

Fryday v. Michaelski, 541 S.W.3d 345, 348 (Tex. App.—Houston [14th Dist.] 2017, pet.

denied); see Franka, 332 S.W.3d at 371 n.9 (explaining that a defendant moving for

dismissal pursuant to § 101.106(f) is asserting a claim of governmental immunity).

It is undisputed that Guerra was employed by the City at the time he made the

alleged statements, so he meets the first Franka prong, and Garcia does not challenge

the third prong. See Franka, 332 S.W.3d at 381. Garcia only challenges whether Guerra

was acting within the scope of employment when he made the alleged defamatory

remarks. Accordingly, we will determine whether Guerra proved that the complained-of

conduct was based on conduct within his scope of employment as City Manager. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka, 332 S.W.3d at 381.

III. SCOPE OF EMPLOYMENT

“Scope of employment” is defined as “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.” TEX.

CIV. PRAC. & REM. CODE ANN. § 101.001(5). “The scope-of-employment inquiry under [§]

101.106(f) focuses on whether the employee was doing his job, not the quality of the job

performance.” Garza v. Harrison, 574 S.W.3d 389, 399 (Tex. 2019) (“[T]he [TTCA]

focuses on ‘performance . . . of the duties of an employee’s office or employment,’ which

calls for an objective assessment of whether the employee was doing [his] job when [he]

committed an alleged tort, not [his] state of mind when [he] was doing it.”). “The scope-

5 of-employment analysis, therefore, remains fundamentally objective: Is there a

connection between the employee’s job duties and the alleged tortious conduct?” Laverie

v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017) (citation omitted). “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 [his] job responsibilities.”

Id. “An employee will of course sometimes have personal motives for performing [his] job

a particular way, and a statement made or an act done may simultaneously fulfill a job

responsibility while furthering an ulterior motive.” Id. at 755.

The fundamental inquiry therefore is not whether the employee did his job well or

poorly, or whether he did his job selfishly or altruistically, but simply whether he was doing

his job. Id. Conduct falls outside the scope of employment when it occurs “within an

independent course of conduct not intended by the employee to serve any purposes of

the employer.” Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014).

IV. DISCUSSION

Guerra averred that his statements were in response to an employment

investigation and such investigation was within his duties as City Manager. To support

his motion to dismiss, Guerra relied on the city manager’s job duties that Garcia attached

as evidence, Garcia’s previous and live pleadings, and Garcia’s TWC complaint.

As the chief administrative and executive officer of the City, the city manager’s job

duties included, among others, seeing that all laws are complied with, appointing all

department heads, removing any City employee, promulgating a personnel management

6 system, evaluating all department heads, and directing and supervising all department

heads. Garcia presented no evidence to dispute the characterization of Guerra’s duties.

Instead, Garcia maintains that slandering a former employee was not within the scope of

the city manager’s duties.

Again, the relevant inquiry is whether there is “a connection between the

employee’s job duties and the alleged tortious conduct.” Laverie, 517 S.W.3d at 753; see

also Hopkins v. Strickland, No. 01-12-00315-CV, 2013 WL 1183302, at *3 (Tex. App.—

Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. op.) (“[A]n act may still be within the

scope of the employee’s duties even if the specific act that forms the basis of the civil suit

was wrongly or negligently performed, so long as the action was one related to the

performance of his job.”). The trial court could have found that Guerra’s statement

accusing Garcia of tampering with governmental records was within the scope of Guerra’s

duties in personnel management, seeing that all laws are complied with, evaluating all

department heads, or directing and supervising all department heads, as Guerra is

responsible for the efficient administration of all affairs within the City. See Laverie, 517

S.W.3d at 754; City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (“An

official acts within the scope of her authority if she is discharging the duties generally

assigned to her.”).

Furthermore, whether the statement was true or false or whether Guerra knew the

statement was true or false “invites partial litigation of the underlying defamation claim

itself.” Laverie, 517 S.W.3d at 753 (providing that the conduct can still be related to a job

7 duty even if the employee performs negligently or is motivated by ulterior motives or

personal animus). “The function of the election-of-remedies provision, however, is not to

adjudicate the underlying tort claim but to quickly dismiss government employees when

the suit should be brought against their employer.” Id. Thus, even if Garcia’s allegations

are true, Guerra was fulfilling his job duties as City Manager in evaluating, directing, and

supervising all department heads and thereafter removing any City employee. See id.

(“Even if Laverie defamed Wetherbe, she did so while fulfilling her job duties.”).

Garcia further states Guerra allegedly made the statements after Garcia was

terminated, and such conduct does not fall within Guerra’s scope of employment as

Garcia was no longer a City employee. However, the complained-of statements were

made while Guerra was employed as City Manager, regardless of Garcia’s termination.2

“Conduct that serves any purpose of the employer is within the scope of employment

even if the conduct escalates beyond that assigned or permitted.” Fink v. Anderson, 477

S.W.3d 460, 465–66 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Even if Guerra made

the remarks after Garcia was terminated, Guerra’s comments regarding the results of his

investigation and the basis for terminating Garcia were made while Guerra was employed

as City Manager. See id. (“[I]ntentional torts have been held to involve conduct within a

governmental employee’s scope of employment when they take place while the employee

2 Guerra retired from his position as City Manager in October 2018. To the extent that Garcia argues Guerra made the defamatory statements after Guerra retired from his position as City Manager and the complained-of statements therefore cannot be made within the scope of Guerra’s employment, we reject such argument. Garcia first sued Guerra complaining of the defamatory statement on May 11, 2018. It is undisputed that Guerra was still employed and serving in his capacity as City Manager on such date.

8 is engaged in conduct to further an interest of his employer and the tortious act is more

of an escalation of—rather than a deviation from—his job duties.”). Garcia states that

none of the city manager duties gave Guerra “authority to commit tortious conduct such

as slander per se or intentional infliction of emotional distress against and ex-employee.”

But the supreme court has rendered judgment for a governmental employee after

concluding that claims against him for intentional infliction of emotional distress and

conspiracy to intentionally inflict emotional distress were subject to dismissal under

§ 101.106(f). See Newman v. Obersteller, 960 S.W.2d 621, 622–23 (Tex. 1997). Simply

put, Guerra’s comments were not “an independent course of conduct” that failed to “serve

any purpose of [his] employer.” See Alexander, 435 S.W.3d at 792. Instead, explaining

the findings of the investigation and the resulting decision to terminate Garcia, then

serving as the public works director, were natural extensions of Guerra’s specific job

duties. Thus, we conclude the alleged statements Guerra made while City Manager

explaining the basis of Garcia’s termination served a purpose of employment. See id.

Because the TTCA “strongly favors dismissal of governmental employees,” we

conclude there is a connection between Guerra’s job duties as City Manager and the

alleged defamatory statement following Guerra’s investigation as it related to Guerra’s

termination of Garcia in his role as the public works director. See Laverie, 517 S.W.3d at

753; see also Melton v. Farrow, No. 03-13-00542-CV, 2015 WL 681491, at *3 (Tex.

App.—Austin Feb. 10, 2015, pet. denied) (mem. op.) (“Texas appellate courts have

consistently held that acts may still be within the scope of the employee’s duties even if

9 the specific conduct that forms the basis of the suit was wrongly or negligently performed

or driven by personal animus.”). Accordingly, the trial court did not err in granting Guerra’s

motion to dismiss pursuant to § 101.106(f). Anderson v. Bessman, 365 S.W.3d 119, 124

(Tex. App.—Houston [14th Dist.] 2011, no pet.). We overrule Garcia’s first issue.

V. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA Justice

Delivered and filed on the 23rd day of March, 2023.