Summary
recognizing that Texas law does not recognize state-based constitutional claims
Summary of this case from Morgan v. FreshourOpinion
No. 05-18-01175-CV
05-07-2020
STEVEN D. CATHCART, Appellant v. DEWIGHT JONES, ET AL., Appellee
On Appeal from the 422nd Judicial District Court Kaufman County, Texas
Trial Court Cause No. 98750-422
MEMORANDUM OPINION
Before Justices Bridges, Whitehill, and Nowell
Opinion by Justice Whitehill
This is a constitutional tort case. Appellant Steven Cathcart's monitored parole was revoked for three violations of his conditions after he was arrested for tampering with his monitoring equipment. Although he was later cleared of the tampering violations, his three other violations were upheld.
Cathcart sued Dwight Jones, Beverly Pipkins, and Brandee Fulfer (the Parole Officers) claiming that they wrongfully arrested him for tampering with his monitoring device. He asserted state contract and tort causes of action and one that we construe to be a claim under 42 U.S.C. § 1983. The Parole Officers answered and asserted some affirmative defenses.
Cathcart appeals the trial court's order denying his summary judgment motion against Jones, granting the Parole Officer's traditional summary judgment motion, and dismissing Cathcart's claims against them.
Cathcart's amended appellant's brief posits seven issues, all of which we deny except two that concern his federal claims. Specifically, we conclude that (i) summary judgment dismissing Cathcart's state constitutional tort claims was not error because there is no independent constitutional tort cause of action for damages in Texas and (ii) summary judgment based on Texas Tort Claims Act (TTCA) § 101.106(f) was not error because the claims were based on the Parole Officers' conduct within the scope of their government employment and could have been brought against the governmental unit.
But we conclude that the trial court erred by granting summary judgment on Cathcart's 42 U.S.C. § 1983 claims because (i) the Heck doctrine does not bar those claims as Cathcart asserts them and (ii) the Parole Officers did not move for summary judgment based on § 1983 immunity or the existence of probable cause to support his arrest.
Furthermore, Cathcart's contract claim presents a subject matter jurisdiction question regarding sovereign immunity. Because there is no evidence that sovereign immunity has been waived, we on our own motion dismiss Cathcart's contract claim for lack of subject matter jurisdiction.
Accordingly, we reverse the trial court's summary judgment on Cathcart's § 1983 claims and remand to the trial court for further proceedings on those claims; we dismiss Cathcart's contract claim for lack of subject matter jurisdiction; and we otherwise affirm the trial court's judgment.
I. Preface
Cathcart does not dispute that his parole was revoked based on administrative fact-findings of three separate parole violations. Rather, the core of his complaint is that he was told his ankle monitor was tamper-proof yet he was arrested for tampering with his ankle monitor. More precisely, undisputed facts establish that he was arrested because state officers received an electronic signal that he had attempted to tamper with his monitor in violation of his parole terms and conditions.
According to Cathcart, arresting him for tampering with a tamper-proof device was wrongful violated his rights (even if probable cause existed for believing that he had tampered with his device).
Cathcart operates under a misunderstanding as to what his contract meant when it says that his device was tamper-proof. Specifically, Cathcart's "Terms and Conditions of Global Positioning System (GPS) Monitoring" provide that:
3. The loss of receiving signal or the receipt of a tamper signal by the monitoring device shall constitute a violation subject to investigation. I further understand that computer printout(s) may be used as evidence in a court of law or administrative hearing to prove said violation(s).
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13. I understand that I will be monitored by a tamper-proof, nonremovable ankle bracelet (transmitter) and a miniature tracking device (MTD). I will be required to wear the bracelet and carry the MTD with me 24 hours a day, 7 days a week. I understand that my location will be monitored by this GPS device.
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17. I understand that I will be monitored by a tamper-proof, nonremovable ankle GPS device, WMTD. I will be required to wear the device 24 hours a day, 7 days a week. I understand that my location will be monitored by this GPS device.
Construing these terms together yields only one reasonable reading of this agreement: Cathcart's device could not be successfully tampered with, attempting to do so would be detected, and trying to do so could result in his parole being revoked. The agreement does not represent or promise that he could not be arrested for tampering with his equipment or attempting to remove his device. Any claim based on a different reading of this agreement is contrary to the document's plain text and fails as a matter of law. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 755 (Tex.2001) ("[A] litigant who sues based on a contract subjects him or herself to the contract's terms; see also Heritage Res. Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996) (unambiguous contracts are construed as written).
Although these conclusions do not necessarily resolve every point of error Cathcart asserts, they are the core belief driving his case.
II. BACKGROUND
The summary judgment record supports these undisputed facts:
Cathcart was convicted of robbery, sentenced to twelve years in prison, and later paroled under the Super Intensive Supervision Program (SISP).
When he met with Jones to review the terms and conditions of his supervision, he was fitted with a GPS monitor and signed a document entitled "Texas Department of Justice Parole Division, Terms and Conditions of Global Positioning System (GPS) Monitoring" (GPS Conditions). The GPS Conditions refer to the monitor as a "tamper proof device" and state that "receipt of a tamper signal by the monitoring device constitutes a violation of parole conditions."
In addition to the monitoring, Cathcart's program conditions limited his ability to leave his premises without prior permission.
On March 19, 2017, three days after agreeing to his program conditions, Cathcart violated his conditions by going to Home Depot instead of to church as had been approved. That same day, he also violated his program conditions by going to Family Dollar instead of church.
The next day, his parole officer received an electronic notice that Cathcart failed to charge his monitoring device according to program conditions.
Three days later, on March 23rd, Cathcart's device transmitted a tampering signal. Later that day, an arrest warrant was issued for him based on the tampering signal. There is no allegation denying, or evidence refuting, the fact that (i) Cathcart's device transmitted a tampering signal; (ii) the tampering signal was the basis for Cathcart's arrest warrant; or (iii) probable cause existed for Cathcart's arrest based on the tampering signal.
The Department of Criminal Justice Parole Division's Violation Report asserted that Cathcart violated his parole conditions by (i) twice violating the location conditions, (ii) failing to properly charge his device's battery, and (iii) tampering with his device. A hearing before a hearing officer resulted in hearing officer findings that Cathcart committed all four violations alleged in that report.
A later Board of Pardons and Paroles hearing resulted in Cathcart's parole being revoked based on findings that Cathcart (i) admittedly violated two parole location conditions; (ii) violated his battery charging condition, which he denied; and (iii) did not violate his no tampering condition. The Board of Pardons and Parole subsequently affirmed the recommendation and formally revoked Cathcart's parole.
Cathcart then sued Jones and Pipkin in their individual capacities, and he sued Fulfer both officially and individually. Cathcart alleged that he was entitled to recover damages for "breach of contract, malicious arrest and imprisonment," and under "State law principles for breach of duty, negligence, and fraud."
Cathcart's pro se pleading was styled "Civil Complaint With Jury Demand." We refer to it as the petition. See TEX. R. CIV. P.45.
The gist of his complaint is that he was wrongfully arrested for tampering with his monitoring device when he had been told and his agreement provided that his monitoring device was tamper-proof. As his amended appellant's brief further illustrates, his complaint alleges that his parole was improperly revoked because he was unlawfully arrested for tampering with a tamper-proof monitor:
On November 15, 2017, appellant filed a civil complaint with the Kaufman County District Clerk's Office for breach of duty, negligence and fraud (9) stemming from the March 26, 2017 unlawful arrest and imprisonment for tampering with the tamper-proof monitor.The Parole Officers answered, generally denied Cathcart's claims, asserted that they are employees as defined by TEX. CIV. PRAC. & REM. CODE § 101.001(2), and raised affirmative defenses that included: (i) sovereign immunity; (ii) official immunity; (iii) Cathcart was not denied any right, privilege or immunity secured by the Constitution or laws of the United States; (iv) there is no cause of action under § 1983 in these circumstances; and (v) they acted in good faith and with a reasonable belief that their acts complied with the laws and Constitution of the United States and they were therefore entitled to qualified, good faith immunity from suit.
Cathcart moved for partial summary judgment on his claims against Jones, arguing that (i) Jones violated the terms and conditions of the "written agreement" [the GPS Conditions] and denied Cathcart his due process rights or committed fraud and therefore "was not acting in good faith"; (ii) Jones knowingly misled Cathcart into believing that the monitor was tamper-proof; and (iii) Jones owed Cathcart a fiduciary duty to explain to whoever issued the warrant that Cathcart's monitor was tamper-proof and thus could not be tampered with. Jones did not directly respond to Cathcart's motion.
The Parole Officers moved for traditional summary judgment arguing that (i) there is no factual basis for Cathcart's claims; (ii) any constitutional challenge to Cathcart's parole revocation is barred by the Heck doctrine; (iii) there is no independent Texas constitutional tort cause of action for damages; and (iv) Cathcart's state tort claims involve actions taken by the Parole Officers in their official capacitates and are barred by TEX. CIV. PRAC. & REM. CODE § 101.106(f).
The Parole Officers' motion is unclear about whether this argument is premised on the statute allowing dismissal of an inmate's claim, see TEX. CIV. PRAC. & REM. CODE § 14.003, or a summary judgment argument. Because there was no § 14.003 motion and the Parole Officers' appellate argument is that "the summary judgment evidence conclusively demonstrated" that the parole revocation was not based on device tampering, we view it as a summary judgment argument.
However, the Parole Officers did not move for summary judgment on the specific ground that there was undisputed evidence that they received a tampering signal from Cathcart's device, giving them probable cause to arrest him for tampering with his monitoring device regardless of whether he was later exonerated for that alleged parole violation.
According to its order, the trial court denied Cathcart's summary judgment motion and granted the Parole Officer's motion because: (i) there is no factual basis for Cathcart's claims; (ii) Cathcart is barred from recovering damages for state constitutional right violations; (iii) the claims for violation of federal constitutional right claims are barred by Heck; and (iv) Cathcart's state tort claims are barred by TEX. CIV. PRAC. & REM. CODE § 101.106(f). Accordingly, the court dismissed all claims against the Parole Officers with prejudice. Cathcart appeals from that judgment.
II. ANALYSIS
A. Standard of review
We review a traditional summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see TEX. R. CIV. P. 166a (b), (c).
When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d at 848.
B. Lack of Factual Basis
The Parole Officer's summary judgment motion argued that there was no factual basis for any of Cathcart's claims because all of his claims rest on his contention that his parole was revoked based on his alleged tampering with his GPS monitor; whereas, the undisputed evidence showed that his parole was revoked because of at least two other violations that he admitted to. This was the only ground in the Parole Officer's motion that addressed Cathcart's contract claim.
Cathcart responded to this ground by arguing that his claims are not based on the reasons for his revocation. Rather, he said, his claims are based on the (fundamental) premise that he was told that his monitor was tamper-proof yet he was arrested for tampering with his monitor.
The trial court's summary judgment order recites "lack of factual basis" as a reason for granting the summary judgment.
We agree with Cathcart on this particular point. The Parole Officer's attacked Cathcart's case by arguing that all of his claims are based on the premise that his parole evocation was based on an allegation that he tampered with GPS monitor. But as explained above, that is not what Cathcart based his claims on. Rather, all his claims have at their core his mistaken belief that his arrest was wrongful because he was told that his monitor was tamper-proof.
Although Cathcart is mistaken in his core belief, this ground in the Parole Officers' summary judgment motion missed the mark and cannot support the trial court's order. This conclusion, however, doesn't completely help Cathcart because the trial court properly dismissed all of his causes of action, except for his 42 U.S.C. § 1983 and contract breach claims, for other reasons. Accordingly, the trial court erred to the extent the trial court's summary judgment order dismissed Cathcart's § 1983 and contract claims on this ground. However, this opinion should not be read to comment on whether these claims will ultimately have any merit.
Accordingly, we resolve Cathcart's first and second issues against him to the extent they assert that the Parole Officers and the trial court misconstrued the subject matter of his claims.
Specifically, Cathcart's first issue asserts that:
Although it is an undisputed fact that appellant's parole was revoked. [sic.] It is also a fact that has no bearing on this case and is not part of the record before the court.
Therefore the trial court incorrectly granted summary judgment to the appellees in this case.
C. Cathcart's State Constitutional Claims
The Parole Officers' maintain that summary judgment dismissing Cathcart's state based constitutional claims was proper because Texas does not recognize such causes of action. They are correct. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) ("no implied private right of action for damages against government entities for violations of the Texas Constitution."; see also, Tex. A & M Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 425 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (op. on reh'g) (Bouillion bars private right of action for damages arising from other alleged Texas constitutional violations); Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 468-69, 471 (Tex. App.—Fort Worth 1997, writ denied) (op. on reh'g) (Bouillion applies to alleged Texas constitutional due process provision violations by individual public officials and governmental entities).
Therefore, the trial court did not err by granting summary judgment on Cathcart's state constitutional tort claims, and we resolve Cathcart's fifth issue against him.
C. Cathcart's State Law Tort Claims
The Parole Officers' motion argued that they were entitled to summary judgment based on TTCA's § 101.106(f) as the trial court ruled. See Tex. Civ. Prac. & Rem. Code § 101.106(f). Cathcart argues that the trial court erred because the Parole Officers in their individual capacities and (i) public employees have always been individually liable for their own torts; (ii) government employees can be sued in their individual capacity; and (iii) the Parole Officers do not have official immunity because they were performing ministerial, not discretionary functions. We agree with the Parole Officers.
When a plaintiff alleges a tort against a governmental unit or its employees, the plaintiff must elect whether to sue the governmental unit or its employees; suing one irrevocably bars suit against the other. Id. § 101.106(a), (b). If the plaintiff chooses to sue only the employees, those employees—if they can meet section 101.106(f)'s requirements—can force the plaintiff to dismiss its suit against them and to file an amended petition against the governmental unit:
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.Id. § 101.106(f).
This legislative mandate compels "the expedient dismissal of governmental employees when suit should have been brought against the government." See Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013). By enacting this provision, the legislature intended to "reduc[e] the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery." See Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014).
Here, Cathcart sued government employees and those employees invoked § 101.106(f)'s protections. Under subsection (f), a defendant is entitled to a dismissal on proof that the plaintiff's suit (i) was based on conduct within the scope of the defendant's employment with a governmental unit and (ii) could have been brought against the governmental unit under the TTCA. See TEX. CIV. PRAC. & REM. CODE §101.106(f); Franka v Velasquez, 332 S.W.3d 367, 369 (Tex. 2011).
The first component encompasses two questions: (i) was the defendant an employee of a governmental unit and (ii) do the alleged acts fall within the scope of that employment at the relevant time? Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The statute strongly favors dismissing governmental employees. Id.
Cathcart's petition identifies all the Parole Officers as working for the Texas Parole Office's SISP section, thus conceding that all three were governmental unit employees. See Franka, 332 S.W.3d at 372. Thus, there is no dispute that the officers were employed by a governmental unit.
As for the second question, the TTCA defines "scope of employment" as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in and about the performance of a task lawfully assigned to an employee by competent authority." TEX. CIV. PRAC. & REM. CODE § 101.001(5). And "public officials act within the scope of their authority if they are discharging the duties generally assigned to them." Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004); see also Franka, 332 S.W.3d at 372.
Cathcart's petition rests on the Parole Officers' actions or inactions regarding the monitor assigned to him under the SISP program. According to Cathcart, Jones and Pipkins reviewed and explained the terms and conditions of his parole, led him to believe that the monitor was tamper-proof and failed to intervene when he was arrested for monitor tampering. Cathcart also alleged that Fulfer failed to train and supervise Pipkins and Jones and had the authority to execute or lift the arrest warrant for monitor tampering. These responsibilities fall within the Parole Officers' scope of employment in the TDCJ Parole Division. See Ballantyne, 144 S.W.3d at 424; Lopez, 414 S.W.3d at 894; see also TEX. GOV'T CODE § 508.001(7) (parole officers assigned duties of assessment of risks and needs, investigation, case management, and supervision of releases to ensure that releases are complying with the conditions of parole or mandatory supervision).
The unauthenticated but unobjected to parole file the Parole Officers filed in support of summary judgment also generally demonstrates that the Parole Officers were acting as parole officers regarding Cathcart's parole.
Nonetheless, Cathcart argues that § 101.106(f) does not apply because he sued the Parole Officers individually. This argument is misplaced because the capacity in which the plaintiff sues the defendant is not determinative. Specifically, this section was intended to "foreclose a suit against a government employee in his individual capacity if he was acting within the scope of his employment." Franka, 332 S.W.3d at 381; see also Hamilton v. Pechacek, No. 02-12-00383-CV, 2014 WL 1096018, at *5 (Tex. App.—Fort Worth Mar. 20, 2014, no pet.) (§ 101.106(f) applied even though claims were asserted against state employee individually because his actions were in the scope of his employment and could have been brought against the governmental unit).
Official immunity under the common law is distinct from an individual employee's § 101.106(f) statutory dismissal right. Garza v. Harrison, 574 S.W.3d 389, 399-400 (Tex. 2019). "Unlike official immunity, which is an affirmative defense that bars a government employee's individual liability, section 101.106(f) essentially prevents an employee from being sued at all for work-related torts and instead provides for a suit against the governmental employer." Id.; see also Garza, 574 S.W.3d at 393-94 ("By adopting section 101.106(f), the Legislature has effectively mandated that only a governmental unit can be sued for a governmental employee's work-related tortious conduct.").
The only remaining question is whether Cathcart could have brought his claims against the government itself. "Under Texas law, a suit against a government employee in his official capacity is a suit against his government employer . . . ." Franka, 332 S.W.3d at 382. For § 101.106 purposes, any tort claim against the government falls under the TTCA. Id. at 375. Because Cathcart's tort claims arose from the scope of the Parole Officers' employment and could have been brought against the government employer, the trial court did not err by granting summary judgment based on § 101.106(f). See id. at 381.
Accordingly, we resolve Cathcart's sixth issue against him. D. Does the Heck doctrine bar Cathcart's claims?
Although Cathcart does not expressly state that he is bringing his federal constitutional claims under 42 U.S.C § 1983, the Parole Officers treated Cathcart's claim for tort damages for alleged federal constitutional violations as a § 1983 claim and raised a § 1983 defense. We therefore consider § 1983.
Appellant asserts that the Parole Officers violated his due-process rights under the United States Constitution and the Texas Constitution. However, there is no recognized common law action for damages against governmental entities for violations of the Texas Constitution and no statute comparable to 42 U.S.C. § 1983. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995); see also Univ. of Texas Sys. v. Courtney, 946 S.W.2d 464, 468-69, 471 (Tex. App.—Fort Worth 1997, writ denied) (Boullion apples to Texas constitutional due process violations by individual public officials and governmental entities).
Section 1983 provides a cause of action against any person who deprives another of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. See 42 U.S.C. §1983. To make a sufficient claim, a plaintiff "must (i) allege a violation of a right secured by the Constitution or laws of the United States and (ii) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000).
But in Heck v. Humphry, 512 U.S. 477, 486-87 (1994), the Supreme Court held that, "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid," a §1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id.
The Heck doctrine extends to parole revocation proceedings. Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995); Littles v. Bd. of Pardons and Paroles Div, 68 F.3d 122 (5th Cir. 1995). When the underlying criminal proceeding is a parole revocation, the question is whether a judgment in favor of the plaintiff in the civil action would "call into question the fact or duration of parole." Littles, 68 F.3d 122, 123 (5th Cir. 1995). If so, a civil rights lawsuit is barred unless the decision of the parole board has been "reversed, expunged, set aside, or called into question." Id.
Cathcart argues that the Parole Officers mischaracterized his claims as challenging his parole revocation and the trial court adopted this mischaracterization. We agree.
Cathcart's petition states that he seeks damages for breach of contract, malicious arrest and imprisonment in violation of the Fourteenth Amendment's Due Process Clause and the Fourth Amendment, and under state law tort principles. All these claims are premised on wrongful arrest and imprisonment for "tampering with" a monitoring device that was supposed to be "tamper-proof." Cathcart asks for damages and declaratory relief, but he does not seek release from prison or reduction of his sentence.
The only reference to relief regarding parole is in the damages section of his pleading that seeks compensation for "the imprisonment and the mental and emotional distress and financial destruction caused by [the Parole Officers] willful, premeditated intention to generate deprivation [sic] of liberty and amenity [sic] resulting from their denial of due process in connection with [Cathcart's] alleged parole violation of tampering with a tamper-proof monitor."
Again, in his declaration supporting summary judgment, Cathcart states that his claims are based on his arrest for tampering with a tamper-proof device and are not based on his parole revocation or his sentence. Cathcart reiterates these positions on appeal. Thus, on a fair reading of Cathcart's petition, summary judgment motion, and appellate brief, he does not challenge his parole revocation. This is important because Heck's applicability depends upon whether Cathcart's claims implicate the validity or length of his confinement. See Heck, 512 U.S. at 486-87.
Consequently, we reject the Parole Officers' argument that Cathcart's claims have no basis in fact because the summary judgment evidence conclusively establishes that parole revocation was not based on device tampering. While the summary judgment evidence may demonstrate this fact, it is irrelevant.
In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Court reviewed the cases before and after Heck and clarified that "a state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 81-82. But §1983 relief "remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner." Id.; see also, Kyles v. Garrett, 353 Fed. Appx. 942, 946 (5th Cir. 2009) (Heck did not bar inmate suit seeking relief that would render certain state parole procedure invalid because success would result in a new parole hearing not a shorter prison term); Florence v. Cox, No. 07-17-00390-CV, 2018 WL 6072247, at *3 (Tex. App.—Amarillo Nov. 20, 2018, no pet.) (mem. op.) (No Heck bar because prisoner's claim concerning disciplinary violation did not affect the validity of his sentence).
Here, Cathcart's parole was revoked because of three violations, two of which he admitted. The allegation that he tampered with his device was not sustained and forms no basis for the revocation. Therefore, Cathcart's success on his wrongful arrest claim would not "spell immediate or speedier release." See Wilkinson, 544 U.S. at 81-82. Consequently, the Heck doctrine does not bar Cathcart's § 1983 claims.
We therefore resolve Cathcart's third and fourth issues in his favor.
We construe Cathcart's first two issues as challenging the characterization of his complaint as one concerning parole revocation and his third and fourth issues as challenging § 1983 summary judgment based on Heck. To the extent Cathcart intended to raise any other arguments or issues within his first four points, they are forfeited as inadequately briefed. See TEX. R. APP. P. 38.1.
E. Are the Parole Officers Immune From § 1983 Liability?
The Parole Officers were all sued in their individual capacity and Fulfer was also sued in her official capacity. Although the Parole Officers raised several types of immunity in their answer, they did not move for § 1983 summary judgment on any of these grounds. Accordingly, we conclude the trial court erred by granting the Parole Officers' summary judgment on Cathcart's § 1983 claims based on the arguments the Parole Officers urged.
These distinctions are important because the capacity in which a government employee is sued controls the type of immunity that may be at play. Sovereign immunity protects government entities from liability. See Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). A suit against a government employee in his official capacity is a suit against his government employer unless the employee acted "ultra vires." Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011).
On the other hand, official immunity protects individuals from liability. See Kassen 887 S.W.2d at 8; see also City of Hempstead v. Kmiec, 902 S.W.2d 118, 120 n.1 (Tex. App.—Houston [1st Dist.] 1995, no writ) (noting that "the term 'official immunity' is confusing because official immunity covers acts performed by a government official in the person's individual capacity, not in the person's official capacity"). On the federal side of the equation, qualified immunity provides similar protections for government officials as to federal claims. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 428 n. 3 (Tex. 2004); see also See Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 10 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (official immunity is the state law analogue to qualified immunity).
Congress did not intend § 1983 to abrogate a state's sovereign immunity from suit without the state's consent. Will v. Mich. Dep't of State Police, 491 U.S. 58, 64-66 (1989) ("a State is not a person within the meaning of § 1983"). Therefore, a state is not a proper party to a § 1983 claim. See Harrison v. Tex. Dept. of Criminal Justice-Institutional Div., 915 S.W.2d 882, 889 (Tex. App.—Houston [1st Dist.] 1995, no pet.). As a result, when a government official is sued under § 1983 in an official capacity, it is regarded as a suit against the State that is barred by sovereign immunity. See McCoy v. Wainwright, No. 03-18-00518-CV, 2019 WL 6765751, at *3 (Tex. App.—Austin 2019, no pet.) (mem. op.).
But if a state official is sued in his individual capacity, he does not enjoy sovereign immunity from suit and may be sued under § 1983. Hamilton v. Pechacek, 319 S.W.3d 801, 811 (Tex. App.—Fort Worth 2010, no pet.). When the §1983 suit is against an individual, the question is whether qualified or official immunity is available. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Cathcart's issues can be fairly read to encompass this argument. We review immunity under the §1983 claim separately from the § 101.106 claim because "[a] federal statutory claim brought under 42 U.S.C. § 1983 . . . is not a suit 'under this chapter.'" Fontenot v. Stinson, 369 S.W.3d 268, 272-73 & n.5 (Tex. App.—Houston [14th Dist.] 2011), aff'd, Stinson v. Fontenot, 435 S.W.3d 793 (Tex.2014) (construing "under this chapter" as used in TTCA section 101.106).
F. Breach of Contract
Although the Parole Officers did not move for summary judgment on breach of contract, Cathcart's petition and arguments include an alleged failure to perform a contract co-mingled and interspersed with other claims. To the extent Cathcart's arguments intend to raise breach of contract, we note that to maintain a breach of contract claim against the State, whether directly or indirectly or by suing an official or employee, a claimant must show that the legislature has waived immunity from suit on the contract. See Gen. Sevs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex. 2001); see also Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002) (a party cannot enforce performance or impose contractual liability on state without legislative permission). In addition, a party cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory judgment claim. Id.
Sovereign immunity deprives courts of subject-matter jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). "Subject matter jurisdiction is an issue that may be raised for the first time on appeal . . . it may not be waived by the parties, and it may—indeed, must—be raised by an appellate court on its own." American K-9 Detection Servs. LLC v. Freemon, 556 S.W.3d 246, 260 (Tex. 2018).
Applying those principles here, we note that Cathcart has neither argued nor shown that the State has waived its contractual immunity in this case. Thus, to the extent he bases any of his arguments on breach of an alleged contract, he has not demonstrated that the court has jurisdiction, and we resolve any contractual immunity arguments against him.
G. Was it Error to Deny Cathcart's Summary Judgment?
Cathcart's seventh issue argues that the trial court erred by denying his partial summary judgment motion against Jones because Cathcart raised undisputed facts. But there are no genuine issues of material fact. And even if we addressed Cathcart's motion, he has not demonstrated how such facts entitled him to judgment as a matter of law on any of his claims—including specifically his § 1983 claim—against Jones. See TEX. R. CIV. P. 166a(c).
Furthermore, the above dispositions render moot any arguments Cathcart may have asserted regarding whether the trial court erred by denying Cathcart's summary judgment motion. Accordingly, we do not address any such arguments.
We thus resolve Cathcart's seventh issue against him.
III. CONCLUSION
We resolve Cathcart's third and fourth issues in his favor and all remaining issues against him. Accordingly, we reverse the trial court's summary judgment on Cathcart's § 1983 claims and remand to the trial court for further proceedings on those claims. We dismiss Cathcart's contract breach claim for lack of subject matter jurisdiction. In all other respects, the trial court's judgment is affirmed.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
181175F.U05
JUDGMENT
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas
Trial Court Cause No. 98750-422.
Opinion delivered by Justice Whitehill. Justices Bridges and Nowell participating.
In accordance with this Court's opinion of this date, the judgment of the trial court on STEVEN D. CATHCART'S Section 1983 claims is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion on this issue; STEVEN D. CATHCART'S contract claims are DISMISSED for want of jurisdiction; and in all other aspects, the trial court's judgment is AFFIRMED. Judgment entered May 7, 2020