Opinion
No. 10-05-00295-CV
Opinion delivered and filed May 28, 2008.
Appeal from the 361st District Court Brazos County, Texas, Trial Court No. 03-001246-CV361.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Justice VANCE dissenting).
MEMORANDUM OPINION
Appellees sued Appellants, employees of Texas AM University. Appellants appeal the overruling of their pleas to the jurisdiction. We affirm.
In Appellants' issue, they contend that the trial court erred in overruling their pleas to the jurisdiction, which pleas were premised upon sovereign immunity. Appellants argue that Appellees brought suit against Appellants in Appellants' official capacities, and thus that Appellees' suits are barred by sovereign immunity. Appellees argue that they brought suits against Appellants in Appellants' individual capacities, and thus that sovereign immunity does not bar those suits.
This case is not governed by Texas Civil Practice and Remedies Code Section 101.106, as amended 2003, which concerns the election of remedies between suits against governmental units and governmental-unit employees. See TEX. CIV. PRAC. REM. CODE ANN. § 101.106(a)-(b) (Vernon 2005); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 11.05, 2003 Tex. Gen. Laws 847, 886 (codified at TEX. CIV. PRAC. REM. CODE ANN. § 101.106 (Vernon 2005)); id. § 23.02(d), 2003 Tex. Gen. Laws at 899; 2003 Tex. Gen. Laws at 899 ("applies only to an action filed on or after" Sept. 1, 2003). Appellants filed their suits in 2002 and early 2003.
"Capacity is a party's legal authority to go into court to prosecute or defend a suit." R R White Family Ltd. P'ship v. Jones, 182 S.W.3d 454, 457 (Tex.App.-Texarkana 2006, no pet.). In order "to impose liability on a party, a plaintiff must sue the party in the capacity from which that plaintiff seeks to recover." Barcroft v. County of Fannin, 118 S.W.3d 922, 927 (Tex.App.-Texarkana 2003, pet. denied); see Morgan v. City of Alvin, 175 S.W.3d 408, 414 n. 1 (Tex.App.-Houston [1st Dist.] 2004, no pet.). A plaintiff may choose to sue governmental-employee defendants individually, that is, "personally, in their official capacity, or both." Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); accord Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex.App.-Austin 2007, no pet.); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 460 (Tex.App.-Tyler 1999, pet. denied); see Harris County v. Sykes, 136 S.W.3d 635, 637 (Tex. 2004); Wilson v. TDCJ-ID, 107 S.W.3d 90, 91 (Tex.App.-Waco 2003, no pet.).
"[A] suit against a governmental employee in his individual capacity seeks to impose personal liability on the individual." Cloud, 228 S.W.3d at 333; see Graham, 473 U.S. at 165 n. 10; Meroney v. City of Colleyville, 200 S.W.3d 707, 713 (Tex.App.-Fort Worth 2006, pet. granted, judgm't vacated w.r.m.); Jackson v. Stinnett, 881 S.W.2d 498, 500 (Tex.App.-El Paso 1994, no writ). "A victory in" an individual-capacity or "personal capacity suit is a victory against the individual government official. . . ." Harris County v. Walsweer, 930 S.W.2d 659, 665 (Tex.App.-Houston [1st Dist.] 1996, writ denied). "[A]n award of damages against an official in his personal capacity can be executed only against the official's personal assets. . . ." Graham at 166; accord Schauer v. Morgan, 175 S.W.3d 397, 405 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Winograd v. Clear Lake City Water Auth., 811 S.W.2d 147, 162 (Tex.App.-Houston [1st Dist.] 1991, writ denied).
"Official-capacity suits, in contrast, 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Graham, 473 U.S. at 165 (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978)); accord Tex. AM Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007); Schauer, 175 S.W.3d at 405; Winograd, 811 S.W.2d at 161. "[A] suit filed against an employee in an official capacity is an attempt to impose liability on the State and therefore the suit is in actuality against the governmental unit." Tex. Parks Wildlife Dep't v. E.E. Lowrey Realty, Ltd., 155 S.W.3d 456, 458 (Tex.App.-Waco 2004), rev'd on other grounds, 235 S.W.3d 692 (Tex. 2007) (per curiam); accord Koseoglu at 844; Cloud, 228 S.W.3d at 333; De Santiago v. W. Tex. Cmty. Supervision Corr. Dep't, 203 S.W.3d 387, 399 (Tex.App.-El Paso 2006, no pet.); Winograd at 161-62. An official-capacity suit "is not a suit against the official personally, for the real party in interest is the entity." Graham at 166; Koseoglu at 844; accord Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex.App.-El Paso 1993), writ dism'd w.o.j., 907 S.W.2d 443 (Tex. 1995) (per curiam). "[A] plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself." Graham at 166; Walsweer, 930 S.W.2d at 665.
Also, "[t]he capacity in which the individual is sued affects the defenses to liability that may be raised." Cloud, 228 S.W.3d at 333. "The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the" sovereign "entity, qua entity, may possess, such as the Eleventh Amendment." Graham, 473 U.S. at 167; see U.S. CONST. amend. XI. Further, "[i]f an individual is sued in his official capacity, the employee may raise any defense that would be available to his employer, including the defense of sovereign immunity." Cloud at 333; accord E.E. Lowry, 155 S.W.3d at 458. "When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses, such as" absolute or qualified official immunity. Graham at 166-67. "Individuals sued in their individual capacity, however, may not rely on the defense of sovereign immunity. . . ." Cloud at 333; accord Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex.App.-Corpus Christi 2002, no pet.); Jackson, 881 S.W.2d at 500; see Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
Official immunity is an affirmative defense, which is not properly raised in a plea to the jurisdiction. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 162-63 (Tex. 2004); accord Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); San Antonio State Hosp. v. Lopez, 82 S.W.3d 566, 568 (Tex.App.-San Antonio 2002, pet. denied). "[A]n official sued in his individual capacity would assert official immunity as a defense to personal monetary liability, which is well suited for resolution in a motion for summary judgment." Koseoglu, 233 S.W.3d at 843 (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). Appellants complain only of the overruling of their plea to the jurisdiction premised on sovereign immunity.
Appellants argue that Appellees brought suit against Appellants in Appellants' official capacities, and thus that the suits are barred by sovereign immunity. Appellants argue that in alleging only acts done within the course and scope of Appellants' employment Appellees sued Appellants in Appellants' official capacities.
Appellees argue that their petitions expressly brought claims against Appellants in Appellants' "individual capacities." Appellees argue that a governmental employee sued in the defendant's individual capacity may be liable for acts done in the course and scope of the defendant's employment. "A government employee may act within the scope of his employment, but not be protected by immunity." Harris County v. Gibbons, 150 S.W.3d 877, 887 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Appellees point, by comparison, to official immunity. "If a government employee acts within the scope of his employment in the performance of a discretionary duty and acts in good faith, he is entitled to official immunity even though his acts are negligent, or even illegal." Tex. State Technical Coll. v. Cressman, 172 S.W.3d 61, 66 (Tex.App.-Waco 2005, pet. denied) (quoting Johnson v. Campbell, 142 S.W.3d 592, 594 (Tex.App.-Texarkana 2004, pet. denied)) (emphasis in Tex. State Technical Coll.); accord Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422 (Tex. 2004); Conklin v. Garrett, 179 S.W.3d 676, 680-81 (Tex.App.-Tyler 2005, no pet.). Thus, although doing an act in the course and scope of employment, a government employee sued in his or her official capacity may nonetheless be liable, if the act is not discretionary or not done in good faith. E.g., City of Lancaster v. Chambers, 883 S.W.2d 650, 656-58 (Tex. 1994) (remanded on good faith); Los Fresnos Consol. Indep. Sch. Dist. v. Southworth, 156 S.W.3d 910, 917 (Tex.App.-Corpus Christi 2005, pet. denied) (no official immunity where duties breached not discretionary); Harris County v. Gibbons, 150 S.W.3d at 886-87 (same); Garza v. Smith, 860 S.W.2d 631, 634 (Tex.App.-Corpus Christi 1993, no writ) (no official immunity where fact issue as to good faith); Garza v. Salvatierra, 846 S.W.2d 17, 21-23 (Tex.App.-San Antonio 1992, writ dism'd w.o.j.) (no official immunity where duties breached not discretionary).
Appellants argue that we must "look beyond the capacity in which the [Appellees] have sued, in order to ascertain the true nature of their claim." (Reply Br. at 7 (citing Pickell v. Brooks, 846 S.W.2d 421, 424 (Tex.App.-Austin 1992, writ denied); Ferguson, 97 S.W.3d 205).) The cases cited by Appellants are distinguishable. In Pickell, the style of the petition indicated that Pickell sued Brooks in Brooks's official and individual capacities, but the body of the petition stated claims only against the State "by and through . . . Brooks." Pickell, 846 S.W.2d at 424; see also Spellmon v. Tex. Dep't of Crim. Justice, No. 14-96-00237-CV, 1997 Tex. App. LEXIS 1205, at *8-*9 (Tex.App.-Houston [14th Dist.] Mar. 13, 1997, no writ) (not designated for publication). The court held that Pickell's allegations thus stated a claim against Brooks only in Brooks's official capacity. Pickell at 424. The bodies of Appellees' petitions clearly state claims against Appellants in Appellants' individual capacities. In Nueces County v. Ferguson, "Ferguson did not explicitly state in his petition whether his claims against Larry Olivarez were brought against Olivarez in an official or individual capacity." Ferguson at 215. The court held, "When a petition fails to specify the capacity in which a person is sued, we will look at the 'course of the proceedings' to determine the nature of the liability the plaintiff seeks to impose." Id. (quoting Graham, 473 U.S. at 166 n. 14) (internal footnote omitted); accord Johnson v. Tims, No. 10-05-00006-CV, 2005 Tex. App. LEXIS 5053, at *5 (Tex.App.-Waco June 29, 2005, pet. denied) (mem. op.) (quoting Ferguson at 215). Appellees' petitions clearly specify that they bring claims against Appellants in Appellants' individual capacities.
The trial court did not err in concluding that sovereign immunity did not bar Appellees' suits against Appellants in Appellants' individual capacities, and thus in overruling Appellants' pleas to the jurisdiction. We overrule Appellants' issue.
Appellants also contend that Appellees' suit against Appellants in Appellants' individual capacities is barred by sovereign immunity as a suit against the State because, Appellants argue, the State has an obligation to defend and indemnify Appellants. See TEX. CIV. PRAC. REM. CODE ANN. §§ 104.001-104.009 (Vernon 2005). The one case cited by Appellants for that proposition is distinguishable, since it concerns a suit against defendants in the defendants' official capacities. See McCartney v. May, 50 S.W.3d 599, 604-606 (Tex.App.-Amarillo 2001, no pet.).
Having overruled Appellants' sole issue, we affirm.
DISSENTING OPINION
The issue in this appeal is straightforward: did the Defendants, all administrative employees of Texas AM University, act in any way with respect to the 1999 bonfire collapse that would potentially render them liable in their individual capacities? Because I believe the answer is "no" and therefore they are entitled to the benefits of sovereign immunity, I respectfully dissent.
I begin by noting that no one contends that the University might be liable to the Plaintiffs. In this appeal, it is undisputed that the University is immune from suit and from liability under the doctrine of sovereign immunity.
We have held that sovereign immunity also protects the University from third-party claims seeking (a) contribution and/or indemnity, (b) a finding of proportionate responsibility under Chapter 33 of the Civil Practice and Remedies Code, and (c) to recover under a contract. Texas AM University v. Bading, 236 S.W.3d 801, 802-03 (Tex.App.-Waco 2007, pet. filed).
The gist of the dispute between the Plaintiffs and Defendants is that the Plaintiffs focus and rely on the capacity in which they sued the Defendants, i.e., the pleadings state that the Defendants are being sued in their individual capacities, whereas the Defendants focus on the capacity in which they acted when their alleged acts (or failure to act) gave rise to the alleged duties that the Plaintiffs claim were breached. I believe, based on precedent from this and other courts, that the latter analysis is correct. As far as I can determine, our supreme court has never directly addressed this question.
The majority apparently relies solely on the capacity in which the Defendants were sued.
THE PLEADINGS THEMSELVES DO NOT DEFEAT SOVEREIGN IMMUNITY
To the extent that the Plaintiffs plead a breach of an alleged duty by any of the employees, such a duty could have existed only because of that Defendant's employment by the University. The Plaintiffs allege that the Defendants were "acting in the course and scope of their employment with TAMU." In short, these Defendants were sued only because they had an official role with the University prior to or at the time of the incident.
The employees maintain that their activities were unrelated to the actual design and construction of the bonfire.
The El Paso Court of Appeals looked at the complained-of acts rather than the allegation of individual capacity in upholding a plea to the jurisdiction by the Project Manager of a municipal housing authority. Gomez v. Hous. Auth. of El Paso, 148 S.W.3d 471, 482 (Tex.App.-El Paso 2004, pet. denied) ("And while [Plaintiffs] appear to argue that Armstrong was also sued in her individual capacity, their petition does not support this contention. The actions complained of involve Armstrong's duties as Project manager for HACEP and her failure to enforce screening procedures. We perceive no individual claim against Armstrong.").
In Terrell v. Sisk, the Texarkana Court of Appeals affirmed an order granting a plea to the jurisdiction based on sovereign immunity. Terrell v. Sisk, 111 S.W.3d 274 (Tex.App.-Texarkana 2003, no pet.). Addressing whether any claims were asserted against a County Judge, individually, the Court said:
We next consider whether claims were raised against Judge Sisk in his individual capacity. State employees sued in their individual capacities may be liable for their negligence if they do not have official immunity. [Citations omitted.]
We have reviewed the pleadings in detail. Although there are places where the Terrell family referred to claims against Judge Sisk in his personal capacity, there were no claims raised involving any act by the judge outside of his public servant persona. . . . In this case all allegations were of claimed wrongdoing or negligence by Judge Sisk in actions he was able to take only because of his position as a public servant. Under these circumstances, we conclude that a fair reading of the Terrell family's pleadings is that there was no effective pleading against Judge Sisk in his individual capacity.
Id. at 281-82.
The Fort Worth Court of Appeals has held that city officials who were responsible for the firing of a governmental employee and who gave an explanation for the reasons behind their actions necessarily acted within the scope of their official duties and thus they were not subject to individual liability on libel and slander claims. City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 899 (Tex.App.-Fort Worth 2001, pet. denied).
In Spellmon v. Tex. Dept. of Criminal Justice, 1997 WL 109985 (Tex.App.-Houston [14th Dist.] March 13, 1997, no pet.) (not designated for publication), the Fourteenth Court of Appeals addressed an inmate's pleading which stated that he was suing state-employee defendants in their individual capacities. In finding the individuals immune from suit, the Court said, "We may ascertain the true nature of appellant's claims, however, by looking beyond the capacity in which he has sued the individual defendants. [Citations omitted.] Appellant clearly sued each officer in this case in his or her official capacity for actions done while functioning as an officer of the State." Id. at *3.
The San Antonio Court of Appeals noted that "public employees who work in a state agency and commit acts in their official capacity are shielded by sovereign immunity." Whitehead v. UT Health Sci. Ctr., 854 S.W.2d 175, 180 (Tex.App.-San Antonio 1993, no writ).
The Austin Court of Appeals reviewed a summary judgment granted to the executive director of the Board of Pardons and Paroles, who had been sued in both his official and individual capacities. Pickell v. Brooks, 846 S.W.2d 421 (Tex.App.-Austin 1992, writ denied). The court held that Pickell had asserted no claims against Brooks in his individual capacity, reasoning that her petition asserted that he had acted on behalf of the agency. Id. at 424.
We have recognized this type of analysis in another context. My opinion in City of Waco v. Williams says: "If a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA. A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms of negligence." City of Waco v. Williams, 209 S.W.3d 216, 222 (Tex.App.-Waco 2007, pet. denied) (opinion by Vance, J.). Chief Justice Gray's opinion in Williams says: "[T]he intentional tort exception c[an]not be circumvented merely by alleging that the government was negligent. . . ." Id. at 231 (opinion by Gray, C.J.).
Here, the mere pleading that the Defendants acted in their individual capacities cannot circumvent the immunity that the Defendants enjoyed when they acted on behalf of the University. Properly construed, the pleadings do not allege acts that might result in individual liability.
The mere denomination of a suit as a declaratory judgment action will not defeat sovereign immunity. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (private parties 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) (citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 842 (1958)).
THE EVIDENCE DOES NOT DEFEAT SOVEREIGN IMMUNITY
The Texas Supreme Court is now firmly committed to the proposition that the consideration of a plea to the jurisdiction may require a trial judge, and the reviewing court on appeal, to look beyond the pleadings. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) ("However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do."); see also County of Cameron v. Brown, 80 S.W.3d 549, 556-57 (Tex. 2002) (considering pleadings and limited jurisdictional evidence in evaluating forseeability element of premises defect claim under the Tort Claims Act); Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (examining pleadings and limited jurisdictional evidence to determine whether plaintiff affirmatively demonstrated waiver of sovereign immunity); Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001) (analyzing the facts alleged by the plaintiff and to the extent relevant, evidence submitted by the parties, in considering whether plaintiff stated a claim for injuries caused by "motor-driven equipment" under the Tort Claims Act).
The Defendants asked the trial court to examine the evidence in ruling on their pleas to the jurisdiction. They told the trial court, "The Plaintiffs' petitions, as well as the evidence presented with this Plea and Motion, conclusively prove that the Plaintiffs are suing the Defendants for alleged ministerial conduct that occurred within their 'official capacity.'" At that time, discovery in the case was substantially complete, and the acts being relied on by the Plaintiffs had been thoroughly examined. None create an independent duty apart from their official positions with the University.
Although not required to do so under Miranda, the Defendants also alleged in their pleas to the jurisdiction that the Plaintiffs' pleadings were a fraudulent attempt to create jurisdiction in the trial court. See Miranda, 113 S.W.3d 244 ("In Bland [ Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)], our preclusion of a trial court's inquiry behind the facts pled in determining subject matter jurisdiction was limited to the jurisdictional amount.").
The foregoing cases demonstrate that we should look beyond the pleadings to determine whether the Plaintiffs' claims can result in individual liability. The pleadings and evidence in this case demonstrates that they cannot, and the pleas to the jurisdiction should have been granted. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) ("if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted," citing Miranda, 133 S.W.3d at 227-28).
PUBLIC POLICY
The University employees also advance a public-policy argument that allowing this suit to proceed penalizes them for being public-sector employees, because in the private sector, absent a finding of alter ego, a corporate officer's or agent's individual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer's duty. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). Whether a duty exists is a question of law. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Here, the Plaintiffs have alleged no set of facts that would give rise to a legal duty owed by any University employee to Plaintiffs apart from those owed by the University.
SUMMARY
The majority's decision (1) deprives these Defendants of the protection of sovereign immunity when all of their acts were on behalf of the University; (2) subjects them to potential liability when their employer — the University — is immune from both suit and liability; and (3) exposes them to more liability than persons similarly situated in the private-sector.
I would find that no claim has been asserted against any University employee as an individual, reverse the trial court's orders denying their pleas to the jurisdiction, and render an order granting such pleas. Because the majority does otherwise, I respectfully dissent.