Stephen Hartman v. Steven Broussard

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00053-CV __________________

STEPHEN HARTMAN, Appellant

V.

STEVEN BROUSSARD, Appellee __________________________________________________________________

On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-198,246 __________________________________________________________________

MEMORANDUM OPINION

Stephen Hartman appeals the trial court’s order granting Steven Broussard’s

plea to the jurisdiction and motion to dismiss.1 Among other issues, Hartman argues

that the trial court erred when it granted the plea to the jurisdiction because, in this

lawsuit, he sued Broussard in his individual capacity and not Broussard’s

1 Broussard filed a cross appeal but has subsequently notified this Court that he is dismissing his cross appeal. 1 governmental employer and thus, section 101.106(a) of the Texas Tort Claims Act

(TTCA) does not entitle Broussard to dismissal. Additionally, Hartman asserts that

Broussard is not entitled to qualified or official immunity under subsection (f) of the

TTCA as Broussard acted unlawfully, in bad faith, and outside the scope of his

employment, and the trial court erred when it denied Hartman’s motion for

continuance. We affirm the judgment of the trial court.

I. Background

The facts of this case have been discussed extensively in this Court’s prior

opinion. See Walker v. Hartman, 516 S.W.3d 71, 75–78 (Tex. App.—Beaumont

2017, pet. denied). Therefore, we only discuss the facts necessary for the resolution

of the issues presently before the Court. Hartman is a licensed process server.

Jefferson County employed Broussard as a sheriff’s deputy, and he worked as a

courtroom bailiff. On May 28, 2013, Hartman arrived at the Jefferson County

Courthouse to serve Judge Layne Walker of the 252nd District Court with judicial

process. Hartman had previously attempted to serve Walker at his residence, and

according to Hartman, Walker and his son assaulted him. Concerned for his safety,

Hartman intended to serve Walker at his place of employment. When Hartman

arrived at the 252nd District Court, Walker was on the bench working the court’s

docket for that morning. Hartman states that he sat quietly in the gallery of the

2 courtroom and did not interrupt Walker while he was on the bench. During a break

in the proceedings, Hartman stated that he quietly approached the bar of the

courtroom and motioned for another bailiff to come and talk to him. Hartman asserts

he never crossed the bar of the courtroom. After whispering to the bailiff that he

needed to serve Walker with federal process papers, the bailiff did not respond to

Hartman and immediately went to Broussard and whispered to him. Hartman states

that he was “charged by Deputy Broussard” and arrested. After Broussard arrested

Hartman, he placed Hartman in a holding cell. Deputies, including Broussard,

confiscated his personal belongings, including a recording device. Hartman was held

in the holding cell all day and was not informed of his charges until he was

transferred to the Jefferson County Jail. 2 He was later allowed to serve Walker in the

jury room of the 252nd courtroom.

Hartman alleged that Broussard illegally accessed his cell phone without a

warrant and took Hartman’s recording device to Broussard’s home and downloaded

the contents. Broussard then illegally viewed the contents of Hartman’s recording

device in Walker’s chambers with several people present, including Walker, his

courtroom staff, and other members of the Jefferson County Sheriff’s Department.

2 Hartman was charged with a “Class B misdemeanor of Hindering [a] Proceeding by Disorderly Conduct.” See Tex. Penal Code. Ann. § 38.13. His charges were dismissed. 3 Hartman emphasizes that the Jefferson County Sheriff’s Department Internal Affairs

Department investigated Broussard’s conduct and recommended that Broussard be

terminated.

Hartman filed a federal lawsuit against Jefferson County, Broussard, Walker,

the other bailiffs, sheriff’s department employees, and individuals who witnessed

Hartman’s arrest and executed affidavits about the events of that morning in the

courtroom. In his original federal complaint, Hartman asserted § 1983 claims against

both Jefferson County and the individuals named in his lawsuit, and “against all

Defendants . . . for numerous pendent state law claims.” In his second amended

complaint filed in federal court, Hartman alleged state tort claims against Jefferson

County, and Broussard and other defendants in their individual capacity.

Specifically, Hartman alleged that “Jefferson County acted through these individual

state actor Defendants . . . to perpetrate constitutional deprivations and

torts[.]”Jefferson County filed a Motion for Dismissal pursuant to section 101.106

of the Texas Tort Claims Act and an Amended Rule 12(b)(6) Motion to Dismiss. All

of Hartman’s claims were dismissed by the federal court.

Hartman then filed this lawsuit in state court alleging tort claims against State

District Court Judge Walker, his bailiffs, sheriff’s department employees, Walker’s

courtroom staff, and the individuals who executed certain affidavits, arising from

4 the same incident. Broussard filed a Plea to the Jurisdiction and/or Motion to Dismiss

arguing that his case should be dismissed for lack of standing under the TTCA

election of remedies, specifically sections 101.106(a), (e), and (f). Broussard argued

that under section 101.106’s election of remedies, Hartman’s decision to sue both

Jefferson County and Broussard (and other individual defendants) in his second

amended federal complaint, and Jefferson County’s subsequent motion to dismiss,

triggered the TTCA’s election of remedies requiring the state court to dismiss

Hartman’s suit against Broussard individually.

Plaintiff’s federal lawsuit [is] relevant to this Motion because Plaintiff’s filing of his Second Amended Complaint in Federal Court, and the responses to same filed by the County and County Employees [(including Broussard)] establish that, at one time, Plaintiff brought Texas tort claims against both the County and the County Employees [(including Broussard)]. Likewise, Plaintiff was contending that the County was vicariously liable for the torts allegedly committed by the County Employees [(including Broussard)] because such employees [(including Broussard)] were acting in the course and scope of their employment. Once Plaintiff filed his Second Amended Complaint, the County filed its Amended 12(b)(6) Motion to Dismiss same, which invoked Section 101.106 of the TTCA, and the County Employees [(including Broussard)] filed their Motion to Dismiss under section 101.106 of the TTCA, Plaintiff’s subsequent amendment to his complaint and, more specifically, the filing of suit in state court after his suit was dismissed in federal court, does not alter his election to proceed with his tort suit against only the County, and not against the County Employees [(including Broussard)].

Hartman answered arguing that he only sued Jefferson County under § 1983 in his

federal lawsuit and not under the TTCA and that he sued Broussard (and the other 5 defendants) “in their individual capacities” for Texas torts. After a hearing on the

motion, the trial court granted Broussard’s motion and dismissed Hartman’s claims

against Broussard with prejudice. The trial court granted “Steven Broussard’s Plea

to the Jurisdiction and/or Motion to Dismiss under Tex. Civ. Prac. & Rem. Code

Sections 101.106(a), (e) & (f) and For Lack of Standing and/or Alternative Motion

for Summary Judgment.” The trial court signed a separate order denying Hartman’s

motion for continuance. Hartman timely filed this interlocutory appeal.

II. 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 order granting

Broussard’s plea to the jurisdiction. See Tex. Civ. Prac & Rem. Code Ann. §

51.014(a)(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)).

6 III. Analysis - TTCA and Election of Remedies

A. Dismissal under Section 101.106(a) – Individual Capacity

We begin our analysis with Hartman’s claim that he sued Broussard in his

individual capacity. The TTCA provides for an election of remedies that forces a

plaintiff at the outset of his lawsuit to determine whether to sue a government

employee in their individual capacity or to sue the governmental employer. See Tex.

Civ. Prac. & Rem. Code Ann. § 101.106(a); see also Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). Once the Plaintiff makes this

election, the TTCA “immediately and forever” bars the plaintiff from suing the other

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)).

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.”

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. While generally Texas Rule of Civil 7 Procedure 65 provides that any subsequent amended pleadings supersede the

original filing, we defer to the statute if a statute provides contradictory language.

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. Section 101.106(a) of the TTCA provides, “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.” 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).3 Any subsequent pleadings cannot avoid the plaintiff’s irrevocable election

3 Hartman argues in this brief that Hintz supports his argument that TTCA’s election of remedies “applies ONLY to the first petition and not to the contents of 8 to sue the governmental entity employer. See Rios, 542 S.W.3d at 538–39; see also

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a).4 Therefore, in determining the

applicability of section 101.106(a), we examine the pleadings, which is not confined

to his original petition, to determine when the Plaintiff first asserted allegations

against the governmental unit prompting the government to file a motion to dismiss

under the TTCA. See Rios, 542 S.W.3d at 538.

In his second amended complaint filed in the federal lawsuit, Hartman added

Jefferson County as a defendant and pleaded the following language:

Hartman’s Texas tort causes of action are set forth in this Complaint, and all incorporated into this section. The intentionally tortious misconduct of each and all of the individual Defendants also constitute negligence per se and gross negligence per se against Hartman[.] All the individual Defendants[’] tortious misconduct proximately caused Hartman actual and compensatory damages. Hartman seeks to recover from each and every individual Defendant his compensatory or actual

amended petitions.” We are unpersuaded by his argument as it directly contradicts the language of that opinion. See Hintz v. Lally, 305 S.W.3d 761, 771 (Tex. App.— Houston [14th Dist.] 2009, pet. denied). 4 We examine Hartman’s federal pleadings because as noted by the Texas Supreme Court in Univ. of Tex. Health Sci. Ctr. of Hous. v. Rios, it is the filing of the government’s motion to dismiss, not its content, that triggers the right to dismissal. 542 S.W.3d 530, 538 (Tex. 2017). When Jefferson County filed a motion to dismiss in Hartman’s federal lawsuit, that motion triggered section 101.106’s election of remedies and section 101.106’s application. Tex. Civ. Prac. & Rem. Code Ann. § 101.106; see also Stinson v. Fontenot, 435 S.W.3d 793, 794 (Tex. 2014) (affirming the court of appeals holding that Stinson’s suit against the County in federal court entitled Fontenot to dismissal of the claims against him individually in the state court suit under the provisions of the TTCA).

9 damages proximately caused by the individual Defendants’ Texas torts[.]

[...]

Hartman’s tort claim for intentional infliction of emotional distress by all the individual Defendants is not a “gap-filler” tort in this case. All the Defendants’ misconduct was truly extreme, outrageous, in open and notorious violation of law and the U.S. Constitution, and were all perpetrated for the specific purpose to cause Hartman severe emotional trauma[.]

(Emphasis added.)

Hartman’s decision to sue both Broussard individually and his employer,

Jefferson County, triggered subsection (a)’s election of remedies. “[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 waived.” Tex.

Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 357 n.7 (Tex. 2013) (citations

omitted). The Texas Supreme Court explained 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. See Alexander v. Walker, 435 S.W.3d 789,

10 791 (Tex. 2014). Accordingly, subsection (a)’s applicability hinges on whether the

suit is against the officer in his individual or official capacity. See id.

Hartman argues that subsection (a) of the election of remedies provision does

not bar the current claims against Broussard because in his original federal court

complaint, Hartman sued the County, Broussard, and other county employees for

constitutional violations under 42 U.S.C. § 1983, and asserted other tort claims only

against Broussard and the other individual Defendants. Hartman’s Original

Complaint filed in federal court alleged claims against the governmental employee

defendants individually for state torts that were beyond the course and scope of their

employment. Hartman makes the distinction that the original federal complaint did

not assert claims against Jefferson County for torts. The whole of Hartman’s appeal

rests on his contention that the causes of action asserted in his Second Amended

Complaint in the federal suit are irrelevant to and did not trigger the election of

remedies provision of TTCA § 101.106(a), because a plaintiff’s election of remedies

occurs when a plaintiff initially files suit and is not affected by any subsequent

amendments to those pleadings. However, his assertion is incorrect. His decision to

sue the government and its employees in their individual capacity for alleged tortious

conduct in the second amended federal complaint triggered section 101.106(a)’s

mandatory dismissal of the individual defendants. This election is irrevocable, and

11 he is barred under section 101.106(a) from proceeding against the individual

employees in their individual capacities. 5 Broussard is entitled to dismissal under

section 101.106(a). “In short, 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

5 The Supreme Court stated in Mission Consol. Indep. Sch. Dist. v. Garcia that [u]nder the Tort Claims Act’s election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, [Tex. Civ. Prac. & Rem. Code Ann.] § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, [Tex. Civ. Prac. & Rem. Code Ann.] § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, [Tex. Civ. Prac. & Rem. Code Ann.] § 101.106(f). 253 S.W.3d 653, 657 (Tex. 2008). But, as noted by the Fourteenth Court of Appeals, although the Supreme Court in Garcia explained that subsection (a) bars recovery against an employee when the plaintiff sues only the government unit first, “the Garcia court did not state that this subsection applies only to situations in which the plaintiff sues the governmental unit alone.” Fontenot v. Stinson, 369 S.W.3d 268, 275 n.9 (Tex. App.—Houston [14th Dist.], aff’d, Stinson v. Fontenot, 435 S.W.3d 793 (Tex. 2014). We agree that Hartman’s election to not only sue Broussard in his individual capacity, but also to sue Jefferson County, triggered the application of subsection (a). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a); see also Alexander v. Walker, 435 S.W.3d 789, 791 (Tex. 2014) (explaining subsection (a) applies when an employee has been sued in his individual and not official capacity); see also Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 418 (Tex. 2015) (distinguishing that subsections (e) and (f) of the TTCA apply to prevent suits against employees “for conduct within the scope of their employment”).

12 governmental employees individually instead of their governmental employers.” Id.

(citation omitted) (emphasis added); see 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. . . . Because it is an irrevocable decision,

a plaintiff must proceed cautiously before filing suit and carefully consider whether

to seek relief from the governmental unit or from the employee individually. This

law strongly favors dismissal of governmental employees. But claims against

governmental employees may be pursued if they do not fall within the election of

remedies categories created by section 101.106”).6

In many ways, Fontenot v. Stinson is analogous to our case. 369 S.W.3d 268

(Tex. App.—Houston [14th Dist.], aff’d, Stinson v. Fontenot, 435 S.W.3d 793 (Tex.

2014). In Fontenot, the Fourteenth Court of Appeals held that a sheriff’s deputy was

entitled to dismissal of the plaintiff’s claims because of the plaintiff’s irrevocable

6 While Hartman never asserts that his tort allegations come under the TTCA, we note that “[b]ecause the [TTCA] is the only, albeit limited, avenue for common- law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the TTCA]’ for purposes of section 101.106.” Garcia, 253 S.W.3d at 659 (citation omitted). This is true for intentional torts, including malicious prosecution, official oppression and harassment claims. Johnson v. Boehnke, No. 03-19-00200-CV, 2019 WL 4458797, at *3 (Tex. App.—Austin Sept.18, 2019, no pet.) (mem. op.) (citations omitted).

13 election under the TTCA. Id. at 269. Tiffany Stinson filed suit against Sheriff’s

Deputy Stephen Fontenot for “various intentional torts, including slander, civil

conspiracy, ‘trespass, assault and battery, intentional infliction of emotional distress,

wrongful arrest, false imprisonment, and malicious prosecution[.]’” Id. Subsequent

to this filing, Stinson filed suit in federal court against Harris County and Sheriff

Tommy Thomas. Id. After removal of her claim against Fontenot to federal court,

Stinson’s claims were consolidated. Id. at 270. Harris County and Sheriff Thomas

then filed a Rule 12(b)(6) motion requesting dismissal of Stinson’s complaints

against them. Id. Ultimately, the federal court dismissed Stinson’s claims against

Harris County and Sheriff Thomas, and remanded Fontenot’s case to state court for

lack of subject matter jurisdiction. Id. Fontenot then moved for summary judgment

arguing he was protected by immunity under the TTCA sections (a), (e), and (f). See

id. The trial court denied Fontenot’s motion, and his appeal to the Fourteenth Court

of Appeals followed. See id.

In its decision, the Court of Appeals reasoned that Stinson’s suit in Federal

Court was brought “under this chapter” for purposes of the TTCA’s election of

remedies because “a suit alleging intentional torts against a governmental unit is a

suit ‘under this chapter’ for purposes of subsection (a).” Id. at 272. The court noted

that although Stinson attempted to allege § 1983 claims against Harris County, she

14 also “unambiguously” alleged common law torts against Harris County, and as such,

her “broadly alleged tort claims” established that she filed suit against a

governmental unit as provided in section 101.106(a). 7 Id. at 274–75. After

determining the applicability of the TTCA election of remedies to Stinson’s claims,

the Court held that “when Stinson filed suit against Harris County, the filing

constituted an irrevocable election against Harris County and immediately and

forever barred any suit or recovery against Fontenot regarding the same subject

matter.” Id. at 276. The Court noted that “[t]his conclusion is not altered by the fact

that her suit against Harris County was the second-filed suit.” Id. Similarly,

Hartman’s claims against Broussard in his individual capacity are barred under the

provisions of TTCA subsection (a).

7 Although similar in many respects, one distinction in Fontenot was that the plaintiff sued Fontenot in his official capacity, whereas here, Hartman argues that he sued Broussard in his individual capacity. The Supreme Court affirmed Fontenot, but it noted that the lower court incorrectly applied section 101.106(a) because Fontenot was sued in his official capacity and not his individual capacity. See Fontenot, 435 S.W.3d at 794 (“[S]ubsection (f) is the appropriate avenue for dismissing a government employee considered to have been sued in his official capacity, while subsection (a) bars suit against an employee in his individual capacity.”). Hartman affirms in his appellate brief that he is suing Broussard in his individual capacity only. 15 B. Dismissal under Section 101.106(f) – Official Capacity

While Hartman asserts in his brief that he is only suing Broussard in his

individual capacity, in a separate issue on appeal, he challenges the trial court’s order

granting Broussard’s plea to the jurisdiction on subsection (f) specifically. See Tex.

Civ. Prac. & Rem. Code Ann. 101.106(f). Hartman alleges in various locations

throughout his pleadings that Broussard’s actions were at the directive of Walker

and Jefferson County.

Section 101.106(f) of the TTCA applies when a government employee is sued

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 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.

16 1. The Course and Scope of Employment

The applicability of subsection (f) hinges on whether Hartman sued Broussard

in his official capacity. The first step in this analysis is to determine whether

Broussard was acting within the course and scope of his employment when the

alleged conduct occurred. Officials act within the scope of employment if their acts

fall within the duties generally assigned to them. 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 their conduct “falls within

the duties assigned,” the conduct is within the government employee’s 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 second amended federal complaint, Hartman does not dispute that

Broussard is an employee of the Jefferson County Sheriff’s Department. Hartman

asserted that Broussard, along with the other defendants in the lawsuit, “acted in a

civil conspiracy” and as a result, this conspiracy “caused Hartman to be maliciously 17 prosecuted[.]” Hartman also asserted that Broussard engaged in “intentional

misconduct” that resulted in “constitutional deprivations” and “damages.”

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). This includes conduct when carrying out an assigned task that

“escalates beyond that assigned or permitted.” Fink v. Anderson, 477 S.W.3d 460,

466–67 (Tex. App.—Houston [1st Dist.] 2015, no pet.),

Despite Hartman’s contention that he only sued Broussard individually, in

various places throughout the pleadings, Hartman alleges Broussard’s actions were

all at the direction of Walker or Jefferson County. In his second amended federal

complaint, Hartman states that “[Broussard] perpetrated multiple Texas Pen. Code

violations and multiple constitutional deprivations intended to harm or damage

Hartman, . . . and to implement the County’s unconstitutional policies, practices, and

customs to Hartman’s detriment[.]” Hartman’s claims of malicious prosecution and

civil conspiracy are based on acts committed in Broussard’s official capacity as a

sheriff’s deputy assigned to a district court. In his fifth amended state petition, 18 Hartman argues that Broussard, all under the direction of Walker, wrongfully

arrested him in Walker’s courtroom, illegally retrieved and downloaded a recording

device, presented the contents of the recording device to Walker and his staff to

view, and falsified probable cause affidavits that lead to his arrest. Broussard’s

alleged actions, while disturbing, fall under his employment as an officer of the

Jefferson County Sheriff’s Department and a bailiff in Judge Walker’s Courtroom.

“Police officers are governmental agents that derive all their powers under the law

through their employing governmental entity.” Garza, 574 S.W.3d at 401 (citations

omitted). Hartman did not allege any “independent course of conduct by the officer[]

not intended to serve any purpose of the [County].” Alexander, 435 S.W.3d at 792;

see also McFadden, 517 S.W.3d at 297 (noting that an officer’s preparation of an

affidavit was within the scope of their employment, even if the officer provided false

information on the affidavit); Donohue v. Koehler, No. 04-16-00190-CV, 2017 WL

943427, at *6 (Tex. App.—San Antonio Mar. 8, 2017, no pet.) (mem. op.)

(explaining that the plaintiff’s arrest was in the scope of the officer’s employment

because he did not allege an “independent course of conduct by [the officer] . . .

intended to further his own purposes, only, rather than that of the . . . [Police

Department]”). Hartman has not pleaded any facts that demonstrate that Broussard’s

actions fall outside of his employment. Allegations of Broussard’s personal

19 motivation or that of a third party are of no consequence as long as Broussard’s

actions were in the course and scope of his employment. See Weaver v. McKeever,

No. 01-12-00851-CV, 2014 WL 768297, at *4 (Tex. App.—Houston [1st Dist.] Feb.

25, 2014, no pet.) (mem. op.) (citations omitted) (“[E]vidence that an employee

brought personal motives to bear in executing his duties as assigned by his employer

does not mean that his actions fall outside the scope of his employment.”). As such,

Hartman’s claims against Broussard are brought under the course and scope of

Broussard’s employment. Id.

2. Government Employer

Having determined that Broussard’s actions fall within the “scope of

employment” as required by section 101.106(f), we next examine whether Hartman's

claims “could have been brought under the [TTCA]” against his government

employer. See Tex. Civ. Prac. & Rem. Code. Ann. § 101.106(f); Alexander, 435

S.W.3d at 792. Hartman argues that Broussard engaged in malicious prosecution,

civil conspiracy and intentional misconduct. Civil conspiracy is an intentional tort

that falls under the purview of the TTCA. See City of Alamo v. Osuna, No. 13-13-

00317-CV, 2014 WL 6602387, at *5 (Tex. App.—Corpus Christi Nov. 20, 2014, no

pet.) (mem. op.); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (noting

that the TTCA does not waive immunity for intentional torts). Likewise, the TTCA

20 applies to claims of malicious prosecution. See Alexander, 435 S.W.3d at 792

(reasoning that the plaintiff’s malicious prosecution claims could have been brought

under TTCA against the county); see also McFadden, 517 S.W.3d at 297–98

(concluding that a malicious prosecution claim could have been brought against the

government employer as well as the employee under the TTCA). Hartman’s claims

against Broussard fall under the TTCA and could have been brought against

Jefferson County. We conclude that because Hartman’s claims could have been

brought against Broussard in his official capacity and could have been brought

against his government employer, he is entitled to immunity from civil liability

under section 101.106(f).

Accordingly, we overrule Hartman’s first issue under both sections

101.106(a) and (f).

IV. Conclusion

Having overruled Hartman’s first issue and determining that any further

analysis of his remaining issues would grant him no greater relief under the law, we

affirm the judgment of the trial court. 8

8 We need not reach Hartman’s remaining issues on appeal, as it would afford Hartman no greater relief. See Tex. R. App. P. 47.1. 21 AFFIRMED.

_________________________ CHARLES KREGER Justice

Submitted on June 10, 2019 Opinion Delivered February 6, 2020

Before McKeithen, C.J., Kreger and Horton, JJ.