Opinion
04-22-00114-CV
07-27-2022
Chris SCHAPIRA and Patricia Benitez, Appellants v. Javier SALAZAR, Appellee
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CI-08671 Honorable Aaron Haas, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Irene Rios, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
LORI I. VALENZUELA, JUSTICE
In the underlying litigation, appellants, Chris Schapira and Patricia Benitez, sued Bexar County Sheriff Javier Salazar in his individual capacity for defamation/slander, defamation/slander per se, and intentional infliction of emotional distress. Salazar filed a plea to the jurisdiction, which the trial court granted. We affirm.
BACKGROUND
On October 19, 2019, appellants were arrested, booked, and formally charged with attempted kidnapping of a child. In May 2020, the charges were "no-billed" by a Bexar County grand jury. A year later, appellants filed suit against Salazar in his individual capacity alleging he made defamatory comments about them. As the basis for their claims, appellants alleged Salazar published (and/or republished) numerous statements, including:
a) immediately after Appellants' arrest in Oct 2019, Salazar (who was facing an upcoming election) posted about Appellants, their arrest, their mugshots (next to a picture of Salazar's badge), the existence of video (that never existed and such fact was a complete fabrication) and commenting that "[t]his was such a brazen daylight attempt to kidnap a three-year old girl that I just have to think as a career police officer this can't be the first time something suspicious like this has happened with these folks";
b) from the time of Appellants' arrest until the time the grand jury "nobilled" Appellants on all charges, Salazar posted (or allowed to be posted and remain posted) "I hope they searched their home in case they had other children locked up in there", "The question now is to figure out how many times they've done this before", "There is no reason to let these people back in the streets attempting to kidnap a child should be a life sentence offense", "They would be leaving in body bags and not cuffs if they were my children they approached", "Scary to think what their motive was. Thank God they were able to stop them. I wonder if they had done this before?", "coyotes would be eating good tonight", "throats would be cut and left in the woods", "rain fire over them", "boiled in oil", "22 long rifle to the back of the head", "leaving in body bags", "Please DO accidentally release them - just saying", "hang them by the tree", "firing squad", "shove them underneath the jail for good", "no jury. straight to the chair", "blow their brains out", "lady would have more than a broken arm", "public hanging", "waterboard them", "they will probably get out" or "they will probably get off" and that "they will probably do it again", "I can tell these two are part of something big" and numerous postings of Appellants' address for the above purposes;
c) after the Bexar County grand jury "no-billed" Appellants in May 2020: "I still firmly believe that what occurred that day is disturbing. What the grand jury ultimately decided cannot change what transpired. Had the mother of that little girl not looked up in time and confronted these two people, there's no way to know what would have happened."
This quote is taken from a NEWS4SA on-line article that quotes a statement Salazar made in October 2019.
These are comments left by other people on the Bexar County Sheriff Office's Facebook page.
This quote is taken from a NEWS4SA on-line article quoting Salazar.
Salazar answered and alleged the affirmative defense that appellants' lawsuit must be brought against him in his official capacity only, and upon motion, must be dismissed unless appellants filed amended pleadings dismissing him and naming the governmental unit as defendant, in accordance with Texas Civil Practice and Remedies Code section 101.106(f). In his plea to the jurisdiction, Salazar alleged more than thirty days had passed since he asserted the applicability of section 101.106(f)'s mandatory dismissal provision. Therefore, he argued that because the claims brought against him in his individual capacity were subject to dismissal, the trial court lacked jurisdiction over appellants' suit. The trial court granted the plea to the jurisdiction and dismissed appellants' claims with prejudice.
SECTION 101.106(f)Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. See Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). The Texas Tort Claims Act (the "TTCA") provides a limited waiver of governmental immunity and caps recoverable damages. See Tex. Civ. Prac. & Rem. Code § 101.023. The TTCA also contains an election-of-remedies provision intended to "force a 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." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). "And because an official-capacity suit against a public employee is merely another way of pleading an action against the governmental employer, on the employee's motion, section 101.106(f) compels an election that makes suit against the governmental employer the exclusive remedy for a public employee's conduct within the scope of employment." Garza v. Harrison, 574 S.W.3d 389, 399 (Tex. 2019) (footnote omitted). "In doing so, 'section 101.106's election scheme favors the expedient dismissal of governmental employees when suit should have been brought against the government.'" Id. (citation omitted). "Unlike official immunity, which is an affirmative defense that bars a governmental 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. at 399-400 (footnote omitted).
Section 101.106(f)'s election-of-remedies provision provides as follows:
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.
Tex. Civ. Prac. & Rem. Code § 101.106(f). "More succinctly, a defendant is entitled to dismissal upon proof that the plaintiff's suit is (1) based on conduct within the scope of the defendant's employment with a governmental unit and (2) could have been brought against the governmental unit under the Tort Claims Act." Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017); see also Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011) ("Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a government employee acting within the general scope of his employment must be dismissed 'if it could have been brought under this chapter [that is, under the Act] against the governmental unit'.").
The election-of-remedies provision in section 101.106(f) "requires courts to grant a motion to dismiss a lawsuit against a governmental employee sued in an 'official capacity' but allows the governmental unit to be substituted for the employee." Garza, 574 S.W.3d at 393. "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." Id. at 393-94. Consequently, appellants' suit against Salazar is considered to be against Salazar in his official capacity, and he is entitled to dismissal under section 101.106(f) if (1) his alleged conduct was within the scope of his employment and (2) appellants' suit could have been brought under the TTCA against the governmental unit. See Alexander v. Walker, 435 S.W.3d 789, 791-92 (Tex. 2014) (per curiam). We first examine whether appellants' suit was based on conduct within Salazar's "scope of employment" as the Bexar County Sheriff.
A. Scope of Employment
"Scope of employment" is defined as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." Tex. Civ. Prac. & Rem. Code § 101.001(5). "The scope-of-employment inquiry under section 101.106(f) focuses on whether the employee was doing his job, not the quality of the job performance." Garza, 574 S.W.3d at 394. "[T]he Tort Claims Act focuses on 'performance . . . of the duties of an employee's office or employment,' which calls for an objective assessment of whether the employee was doing [his] job when [he] committed an alleged tort, not [his] state of mind when [he] was doing it." Laverie, 517 S.W.3d at 753 (citation omitted). "The scope-of-employment analysis, therefore, remains fundamentally objective: Is there a connection between the employee's job duties and the alleged tortious conduct?" Id. "The answer may be yes even if the employee performs negligently or is motivated by ulterior motives or personal animus so long as the conduct itself was pursuant to [his] job responsibilities." Id. "An employee will of course sometimes have personal motives for performing [his] job a particular way, and a statement made or an act done may simultaneously fulfill a job responsibility while furthering an ulterior motive." Id. at 755. "The line between the professional and personal is sometimes difficult to discern, as people typically do not carefully or consciously delineate between the two." Id. "The fundamental inquiry therefore is not whether [the employee] did [his] job well or poorly, or whether [he] did [his] job selfishly or altruistically, but simply whether [he] was doing [his] job." Id.
Appellants do not dispute that Salazar is an employee of a governmental unit. However, appellants argue the trial court erred in granting Salazar's plea to the jurisdiction because Salazar failed to show the lawsuit was for conduct that fell within the general scope of his employment. An official acts within the scope of his authority if he is discharging the duties generally assigned to him. City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.1994). Thus, the dispositive question we must address is in what capacity Salazar was acting at the time he committed the acts for which the complaint was made. See Rivera v. Garcia, 589 S.W.3d 242, 246 (Tex. App.-San Antonio 2019, no pet.).
The statements attributed to Salazar appeared in a San Antonio news article and in the comments section to a post on the Bexar County Sheriff Office's Facebook page. In their response to Salazar's plea to the jurisdiction, appellants contended Salazar did "little to address the actual context of the statements at issue and what actual duty demands that he act as the prosecutor, jury and appellate court concerning the guilt of Appellants and/or how statements concerning the death of Appellants might somehow might [sic] be with the scope of his duties." They alleged his duties "do not include the dissemination of the defamatory statements at issue" and the statements "are simply not in any way in furtherance of and in the scope of Defendant Salazar's duties."
"An officer's scope of employment includes the activities performed in his role as officer, including investigating, arresting, and answering media inquiries." Id. at 249 ("Accordingly, when Assistant Chief Deputy Torres was interviewed by the media, he was acting in his capacity as a deputy of the Jim Wells County Sheriff's Office."). As stated above, our analysis is objective, and we do not consider whether Salazar performed negligently or was motivated by ulterior motives or animus toward appellants. Based on an objective assessment of Salazar's actions and because we "are not tasked with passing judgment on [Salazar's] skill or the manner in which he attempted to" perform his duties as Bexar County Sheriff; see Garza, 574 S.W.3d at 405; we must conclude Salazar was acting in the scope of his employment regarding the statements attributed to him. See Laverie, 517 S.W.3d at 755-56 ("Even if Laverie defamed Wetherbe, she did so while fulfilling her job duties.").
B. Whether Appellants' Claims "Could Have Been Brought" under the TTCA
We next address section 101.106(f)'s requirement that appellants' claims "could have been brought" under the TTCA. Appellants assert their claims against Salazar for defamation and intentional infliction of emotional distress could not be brought against a governmental entity under the TTCA; therefore, section 101.106(f) does not apply.
"[A]ny tort claim against the government is brought 'under' the Act for purposes of section 101.106, even if the Act does not waive immunity." Franka, 332 S.W.3d at 375. A claim "could have been brought under the Act" when the "claim is in tort and not under another statute that independently waives immunity." Id. at 381; see also Rivera, 589 S.W.3d at 246 ("'Could have been brought' applies to all claims 'in tort and not under another statute that independently waives immunity,' even where the Tort Claims Act does not waive immunity."); see also Garcia, 253 S.W.3d at 659 ("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."). Because suits brought "under" the TTCA include those for which immunity is not waived, appellants' tort claims "could have been brought" against the governmental entity.
CONCLUSION
We conclude section 101.106(f) applies to appellants' suit against Salazar and Salazar was entitled to be dismissed from the suit on that basis. Accordingly, we affirm the trial court's February 8, 2022 "Order Granting Defendant Javier Salazar's Plea to the Jurisdiction."
In a footnote in their brief on appeal, appellants assert that "[t]o the extent § 101.106 is applied in a manner so as to exclude otherwise valid common law claims, Appellants stress their objection to same and request that this Court make a determination concerning the constitutionality of said provision." Appellants waived this issue due to inadequate briefing. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").