Opinion
No. 11-18-00173-CV
07-31-2020
TIMOTHY PATRICK LEE, Appellant v. GAINES COUNTY SHERIFF'S OFFICE, SHERIFF RONNY PIPKIN, AND LIEUTENANT CLINT LOW, Appellees
On Appeal from the 106th District Court Gaines County, Texas
Trial Court Cause No. 18-01-17747
MEMORANDUM OPINION
Because it found that it had no jurisdiction, the trial court dismissed Appellant's lawsuit for "Damages of False Arrest, Unlawful Incarceration and Improper Investigation of Crime." We affirm the trial court's order of dismissal.
Appellant, acting as his own lawyer, sued the Gaines County Sheriff's Office, Sheriff Ronny Pipkin, and Lieutenant Clint Low for damages "inflicted by the Gaines County Sheriff's Office and members of its law enforcement personell [sic]." Appellant alleged that the lawsuit was brought "pursuant to violations of the Texas Constitution Amendment IX, and U.S. Constitution Amendment[s] IV, V, XIV and Texas Civil Practice and Remedies Code § 103.001(a)(2)(C)(ii)."
Specifically, Appellant sued Sheriff Pipkin because Sheriff Pipkin, in his capacity as the supervisory official responsible for Lieutenant Low, failed to take corrective action against Lieutenant Low. Appellant sued Lieutenant Low for abuse of power, failure to properly investigate a crime, use of excessive force, and malicious prosecution.
In his petition, Appellant alleged that on July 6, 2017, he went to the Gaines County Sheriff's Office to talk to Deputy Romeo Guerrero. Appellant wanted to return some items that Appellant believed to be stolen. Appellant pleaded that, at some point during this process, he was "threatened with prosecution" and was told that he had three days to furnish the name and place where he had found the items or he would be charged. Appellant claims that he was verbally abused "because of his omissions to where he found the items believed to be stolen."
When Appellant left the sheriff's office, he went to the parking lot to get into a vehicle that "he had authority to use"; he intended to then obtain registration for the vehicle. However, Appellant alleged, Lieutenant Low and other law enforcement personnel with the Gaines County Sheriff's Office and the Seminole Police Department approached him. Lieutenant Low "maliciously and violently" pointed his gun at Appellant.
Appellant pleaded that Lieutenant Low then made Appellant "drop to the ground and put his hands behind his back" and arrested him without a "warrant or reliable, credible evidence." In a letter from the district attorney's office to Lieutenant Low, the first assistant district attorney indicated that felony charges would not be filed due to insufficient evidence. A copy of the letter is attached to Appellant's petition.
Appellant alleged that "[t]he arrest was made upon an erroneous and false report submitted with false information out of state." He also alleged that "the defendant could have ascertained the falsity of the charge had the defendants exercised reasonable diligence in performing their duties and not neglected to make reasonable and factual investigation of the charge and its information."
Appellant claimed that Appellees' actions and inactions caused him to be deprived of "rights, privileges, and immunities secured under the Constitution for the United States and under laws of Texas." He pleaded that he sustained deprivations of his personal liberty, invasion of his privacy, and violations of his civil rights; suffered psychological harm and mental distress; was subjected to fear, humiliation, embarrassment, and defamation of his character and reputation; missed precious time that was afforded to him with his children; missed job opportunities; and had suffered in the past from malicious prosecution "on behalf of officers from the defendant." Appellant sought compensatory damages in the amount of $75,000 and punitive damages of $25,000.
After Appellees had filed their "Plea to the Jurisdiction, Original Answer, Special Exceptions and Affirmative Defenses," they filed a motion to dismiss. Later, Appellant filed a "Motion to Amend" wherein he lists "other responsible parties that should be amongst the other defendants to this suit." The "other responsible parties" to whom he referred were Gaines County and Deputy Guerrero. Appellant did not obtain a ruling on the motion, and he did not file an amended pleading. The trial court granted Appellees' motion to dismiss and dismissed Appellant's lawsuit with prejudice.
In his first issue on appeal, Appellant argues that Appellees' trial counsel did not properly serve notice on him. He claims that he never received any notices until he received Appellees' motion to dismiss.
Appellees filed their answer on January 29, 2018. The certificate of service shows that Appellees' counsel mailed a copy to Appellant at his Lubbock County Jail address. The record reflects that, under date of January 26, 2018, Appellant sent a change of address notice to the district clerk. The district clerk filed the change of address on January 30, 2018. The notice reflected that Appellant's address was no longer the Lubbock County Jail but that it was then the Garza County Jail. Appellant filed an additional change of address on April 16, 2018, which reflected Appellant's new address at the Formby Unit in Plainview.
In his brief, Appellant admits that he had received Appellees' motion to dismiss before he was moved from the Garza County Jail to the Formby Unit. The order on the motion to dismiss is the order about which Appellant complains in this appeal. He does not complain that there was a hearing on the motion and that he received no notice of it; there was no hearing.
Appellant had the obligation to keep the court and the parties apprised of his current address. TEX. R. CIV. P. 21a; Withrow v. Schou, 13 S.W.3d 37, 41 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The record shows that, at the time that Appellees filed their motion to dismiss, the address on file for Appellant had changed from the Lubbock County Jail to the Garza County Jail and that the Garza County Jail address is the address to which the notice was sent. In fact, Appellant concedes that he received the motion to dismiss.
Because Appellant received notice of the filing of the motion to dismiss and because he makes no complaint other than that defense counsel failed to "serve all [pleas]" on all parties, we overrule Appellant's first issue on appeal.
Basically, in his third and fourth issues on appeal, Appellant questions whether the trial court properly dismissed Appellant's lawsuit. We will discuss those two issues together.
First, Appellees contend, and Appellant agrees, that the Gaines County Sheriff's Office is a non-suable entity. We also agree. See Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991) (The appellant did not prove that the Pasadena Police Department had the capacity to engage in separate litigation; therefore, in his suit, he sought recovery from a legal entity that did not exist.). The trial court did not err when it dismissed the Gaines County Sheriff's Office from Appellant's lawsuit.
In the trial court, Appellees filed, among other things, a plea to the jurisdiction and a motion to dismiss; both were based upon their claims that the Gaines County Sheriff's Office was not a proper defendant and that all Appellees were immune from suit. The trial court entered an order in which it stated that it had considered "Defendants' Motion to Dismiss" and that, "[a]fter reviewing the pleadings, the Court believes the motion is well taken and should be granted." The trial court dismissed the lawsuit with prejudice but did not state the grounds upon which it granted the relief. We have already held that the trial court properly dismissed the Gaines County Sheriff's Office from the lawsuit, and we will not further address issues as to the sheriff's office.
Before a court may decide a case, it is essential that the court possess subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). A plea to the jurisdiction is a proper vehicle by which to challenge a trial court's subject-matter jurisdiction. Id. at 554. The question as to the existence of subject-matter jurisdiction is a question of law, and we review the question de novo. Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
At its basic core, sovereign immunity embraces two concepts: sovereign immunity from suit and sovereign immunity from liability. Id. at 853. Generally, sovereign immunity from suit will defeat a trial court's subject-matter jurisdiction unless the State has consented to the suit. Id. Immunity from liability is an affirmative defense, not a matter of subject-matter jurisdiction, but it still must be waived. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). In this case, we are concerned only with immunity from suit.
The term "sovereign immunity" properly applies to the State and to divisions of state government, such as boards, hospitals, and universities. Goodson v. City of Abilene, 295 S.W.3d 692, 694 (Tex. App.—Eastland 2009, no pet.). Although the terms "sovereign immunity" and "governmental immunity" are often used interchangeably, "governmental immunity" is the proper term to use when referring to political subdivisions of the State, such as cities, counties, and school districts. Id. "Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts." Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Governmental immunity defeats subject-matter jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
"Official immunity" is yet another form of immunity. "Official immunity protects public officials from suit[s]" that arise from the good faith performance of their discretionary duties when such duties are within the scope of their authority. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422 (Tex. 2004).
"[A] suit against a government employee in his official capacity is a suit against his government employer with one exception: an action alleging that the employee acted ultra vires. With that exception, an employee sued in his official capacity has the same governmental immunity, derivatively, as his government employer." Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex. 2011) (footnotes omitted). Appellant sued the deputies only in their official capacities, not individually. Therefore, we need not discuss further either the state of the law as to official immunity or its applicability in this case.
Initially, a plaintiff shoulders the burden to allege facts that establish subject-matter jurisdiction. Miranda, 133 S.W.3d at 226. We are to engage in a liberal construction of the pleadings and will construe the pleadings liberally in favor of the plaintiff. We look to the pleader's intent. Id. We review and evaluate pro se pleadings by less stringent standards than we do when we consider pleadings drafted by lawyers. Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, writ denied). The trial court may consider evidence, and it must consider evidence when necessary to decide jurisdictional issues. Miranda, 133 S.W.3d at 227. No party offered or requested to offer evidence in the case before us. Therefore, our review is limited to the pleadings.
The legislature has provided for a waiver of immunity in certain situations. That waiver is contained in Section 101.021 of the Texas Tort Claims Act and provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2019).
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
The Act also provides that it does not apply to a claim "arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities." Id. § 101.057(2). Appellant has alleged, among other things, abuse of power, excessive force, and malicious prosecution. Those are intentional torts. As set forth in the Tort Claims Act, immunity has not been waived as to intentional torts. See Midland Indep. Sch. Dist. v. Watley, 216 S.W.3d 374, 382 (Tex. App.—Eastland 2006, no pet.) (trial court had no jurisdiction in suit for intentional infliction of emotional distress). Because immunity had not been waived, the trial court here did not have subject-matter jurisdiction over the intentional torts that Appellant alleged against Sheriff Pipkin and Lieutenant Low.
Appellant also alleged a cause of action against Sheriff Pipkin for "failure to take corrective action against personell [sic] under his authority." Appellant alleged that Lieutenant Low failed to properly investigate a crime. As to those allegations, before it can be said that immunity has been waived, Appellant's injury must have been caused by the condition or use of tangible personal or real property. Appellant has pleaded nothing to show such a condition or use. In fact, Appellant has not pleaded any waiver provisions at all. We have, however, in an effort to liberally construe Appellant's pleadings, addressed the immunity issue even though not specifically pleaded.
Appellant actually pleaded his right to recover under Section 103.001(a)(2)(C)(ii) of the Texas Civil Practice and Remedies Code. That section deals with compensation of persons who have wrongfully served time in prison and is not applicable here. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 103 (West 2019 & Supp. 2019).
In his brief, Appellant maintains that the provision as to tangible property is satisfied because the jail was used to incarcerate him. But the jail was used only to facilitate the alleged wrongful incarceration. Any such use of property was "encompassed within the exclusion of claims arising from intentional torts." Tex. Dep't of Criminal Justice—Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 814 (Tex. 2012). Even if the claims were separate from the intentional conduct claims, Appellant still must satisfy the use-of-tangible-property requirement. Id. at 815. Here, Appellant has not pleaded facts to show that the use or condition of tangible personal or real property caused his alleged injuries.
In his brief to this court, Appellant argues broadly that he had a viable Section 1983 claim. In his petition in the trial court, Appellant pleaded that his action was brought "pursuant to violations of the Texas Constitution Amendment IX, and U.S. Constitution Amendment[s] IV, V, XIV and Texas Civil Practice and Remedies Code § 103.001(a)(2)(C)(ii)." However, Appellant has no pleadings by which he invokes the provisions of 42 U.S.C. § 1983.
As we have said, it is a plaintiff's burden to plead facts that affirmatively show that the trial court has jurisdiction. Miranda, 133 S.W.3d at 228. When we determine whether a plaintiff has met that burden, we review the allegations in the pleadings, accept them as true, and construe them in the pleader's favor. Id. at 226-27. We may also consider any evidence relevant to the question and must consider evidence when necessary to decide jurisdictional issues. Id. at 227.
When we apply those standards to the pleadings in this case, we conclude that Appellant's pleadings do not affirmatively demonstrate that the trial court had subject-matter jurisdiction in this case. The pleadings show that Appellees were entitled to governmental immunity and that the immunity had not been waived. We overrule Appellant's third and fourth issues on appeal.
In his second issue on appeal, Appellant contends that he should have been afforded the opportunity to amend his petition. Appellant did file a motion to amend his petition. However, the only amendment that Appellant sought in that motion was to add Gaines County and "Romeo Guerrero - Deputy Sheriff" as defendants in the lawsuit. Appellant did not file an amended petition.
If a plaintiff does not allege facts sufficient to affirmatively show jurisdiction, but any defects in the pleadings can be cured by amendment, then a plaintiff should be afforded an opportunity to amend the pleadings. Miranda, 133 S.W.3d at 226-27. However, when pleadings affirmatively negate jurisdiction, a trial court may properly grant a plea to the jurisdiction without affording the plaintiff the opportunity to amend his pleadings. Id. Appellant's pleadings demonstrate that Appellees are immune from suit, and Appellant has pleaded nothing to show that that immunity has been waived. We cannot see how amendments could remedy that obstacle to subject-matter jurisdiction. We overrule Appellant's second issue on appeal.
Because we have overruled his other issues on appeal, we need not address Appellant's fifth issue on appeal.
We affirm the trial court's order of dismissal.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE July 31, 2020 Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.