Originally published by Fourth Court of Appeals Blog.
by Robert Clore
Clore
Appeals & Litigation Support rclore@robclorelaw.com
Last week the 4th
Court of Appeals handed down no significant civil opinions outside the family
law context. This week, the court issued an opinion concerning the election of
remedies provision of the Texas Tort Claims Act (“TTCA”). The opinion
underscores the need for plaintiffs to exercise caution when determining the parties
to name in a suit involving a governmental entity and its employees.
Remember that under Molina v.
Alvarado, 463 S.W.3d 867, 871 (Tex. 2015), if the plaintiff is not sure
when filing suit whether the employee was acting within the scope of employment,
“the prudent choice [is] to sue [the employee], and await a factual resolution
of that question.” The governmental
entity can be later added under Section 101.106(f). By contrast, if the
governmental entity is named first, and not the employee, this is considered an
irrevocable decision not to sue the employee.
1. Texas Tort Claims Act and
Election of Remedies.
Donohue v. Dominguez, No. 04-15-00068-CV
(Tex. App.—San Antonio, Jan. 13, 2016, no pet. h.).
Author:
Angelini, J.
Panel:
Angelini, J., Barnard, J., Alvarez, J.
Originating
Court: 57th District Court, Bexar
County, Texas.
Trial
Judge: Salinas,
J.
Holding:
Affirmed
the dismissal of claims brought against two police officers.
John Donohue sued, among others,
the San Antonio Police Department and two officers in connection with injuries
sustained during an allegedly improper arrest. Donohue asserted claims of false
imprisonment, assault, and aggravated assault against the officers, and
maintained the claims were brought under chapters 20, 22, and 39 of the Texas
Penal Code. Donohue also alleged violations under article, 1, sections 9, 13,
and 19 of the Texas Constitution.
The officers moved to dismiss
under the TTCA, and the trial court granted the motion. Donohue then nonsuited
his claims against the officers in their official capacities. An interlocutory
appeal of the dismissal ensued.
Section 101.106(f) of the Texas
Civil Practice and Remedies Code provides:
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.
This section forces the 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, thereby reducing the
resources that the government and its employees must use in defending redundant
litigation and alternative theories of recovery.’” City of Webster v. Myers,
360 S.W.3d 51, 57 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (quoting Mission
Consol. Ind. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)).
Here, Donohue failed to make the
election, and named both the police department and its officers (in both their
individual and official capacities). He declined to dismiss the officers as
required by section 101.106(f), maintaining that his claims for violations of
the Penal Code and the Texas Constitution arise outside the purview of the
TTCA.
The 4th Court of
Appeals disagreed. First, the court of appeals explained that the Texas Penal
Code does not create a civil cause of action for criminal violations. A party
may allege civil assault, but it is still a tort and is not governed by the
Penal Code. Further, even though the TTCA does not waive immunity for
intentional torts, this does not mean that the claims are not subject to the
TTCA.
“Because the Tort Claims Act 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 Tort Claims Act for purposes of section
101.106.” Garcia, 253 S.W.3d at 659 (emphasis added). Thus, even though
the TTCA did not waive immunity for the intentional tort claims brought by
Donohue (i.e., false imprisonment, assault, and aggravated assault), they were
still subject to the TTCA and section 101.106(f).
The court likewise concluded that
Donohue’s claims under the Texas Constitution did not remove him from the
requirements of the TTCA. Generally, there is no private cause of action
against a governmental entity or its officials for money damages relating to
alleged violations of Texas constitutional rights. City of Arlington v.
Randall, 301 S.W.3d 896, 906-07 (Tex. App.—Fort Worth 2009, pet. denied).
“[O]nly if the language of the specific provisions involved clearly impl[y]” a
private action for damages does the Texas Constitution create one.” Brown v.
De La Cruz, 156 S.W.3d 560, 563 (Tex. 2004). None of the constitutional
provisions asserted in this case implied a private right of action for damages
against the governmental unit that would exist apart from the TTCA.
The court of appeals also found
that the officers were acting within the scope of employment for purposes of
section 101.106(f), inasmuch as Donohue’s claims were premised on the allegedly
improper acts of the officers in the course of making an arrest. Donohue did
not allege an independent course of conduct by the officers intended to
further their own purposes only and thereby not intended to serve any purpose
of the police department. See Laverie v. Wetherbe, No. 07-13-00348-CV,
2015 WL 739670, at *4 (Tex. App.—Amarillo Feb. 20, 2015, pet. filed) (holding
that claims were within the general scope of employment as provided by section
101.106 because the record did not show the government employee was, by her
actions, serving her own purposes only and not any purpose of her employer).
Having determined that section
101.106 applied to Donohue’s claims, and that the claims against the officers
were required to be dismissed, the court of appeals upheld the trial court’s
dismissal of the claims against the officers.
OPINION APPELLANT’S BRIEF APPELLEES’ BRIEF
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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