January 13, 2016 Opinions.
by Robert Clore
Clore Appeals & Litigation Support [email protected]
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
APPELLANT'S REPLY BRIEF