Bowen v. Comstock, No. 10-05-00295-CV (Tex. App. 5/28/2008)

• Decision Date: 28 May 2008
• Docket Number: No. 10-05-00295-CV.,10-05-00295-CV.
• Parties: RAY M. BOWEN, WILLIAM KIBLER, JOHN KOLDUS, III, J. MALON SOUTHERLAND, RUSSELL W. THOMPSON, ZACK COAPLAND, MAJOR GENERAL M.T. HOPGOOD, JR., KEVIN JACKSON, DONALD JOHNSON, MICHAEL DAVID KRENZ, JAMES REYNOLDS, AND ROBERT HARRY STITELER, JR., Appellants, v. JOHN ANDREW COMSTOCK, DIXIE ANN COMSTOCK, JACQUELYNN KAY SELF, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JERRY SELF, DECEASED, ANDREA HEARD, INDIVIDUALLY, KATHY McCLAIN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF BRYAN McCLAIN, DECEASED, PHIL R. McCLAIN, INDIVIDUALLY, DOMINIC BRAUS, NANCY BRAUS, MATTHEW ROBBINS, GREGORY ANTHONY POWELL, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CHAD A. POWELL, DECEASED, LESLIE HEARD, AND BEVERLY JILL POWELL, INDIVIDUALLY Appellees
• Court: Texas Court of Appeals

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RAY M. BOWEN, WILLIAM KIBLER, JOHN KOLDUS, III, J. MALON SOUTHERLAND, RUSSELL W. THOMPSON, ZACK COAPLAND, MAJOR GENERAL M.T. HOPGOOD, JR., KEVIN JACKSON, DONALD JOHNSON, MICHAEL DAVID KRENZ, JAMES REYNOLDS, AND ROBERT HARRY STITELER, JR., Appellants, v.JOHN ANDREW COMSTOCK, DIXIE ANN COMSTOCK, JACQUELYNN KAY SELF, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JERRY SELF, DECEASED, ANDREA HEARD, INDIVIDUALLY, KATHY McCLAIN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF BRYAN McCLAIN, DECEASED, PHIL R. McCLAIN, INDIVIDUALLY, DOMINIC BRAUS, NANCY BRAUS, MATTHEW ROBBINS, GREGORY ANTHONY POWELL, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CHAD A. POWELL, DECEASED, LESLIE HEARD, AND BEVERLY JILL POWELL, INDIVIDUALLYAppellees

No. 10-05-00295-CV.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed May 28, 2008.

Appeal from the 361st District Court, Brazos County, Texas, Trial CourtNo. 03-001246-CV361.

Order affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA(Justice Vance dissenting)

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Appellees sued Appellants, employees of Texas A&M 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.¹

"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.-Texarkana2003, pet. denied);seeMorgan 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);accordCloud 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.-Tyler1999, pet. denied);seeHarris 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;seeGraham,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 . . . ."Grahamat 166;accordSchauer 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(quotingMonell v. Dep't of Soc. Servs.,436 U.S. 658, 690 n.55(1978));accordTex. A&M 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.-Waco2004), rev'd on other grounds,235 S.W.3d 692(Tex.2007)(per curiam);accordKoseogluat 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.);Winogradat 161-62.An official-capacity suit "is not a suit against the official personally, for the real party in interest is the entity."Grahamat 166;Koseogluat 844;accordGonzalez v. Avalos,866 S.W.2d 346, 349(Tex. App.-El Paso1993), 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."Grahamat 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;seeU.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."Cloudat 333;accordE.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.²Grahamat 166-67."Individuals sued in their individual capacity, however, may not rely on the defense of sovereign immunity . . . ."Cloudat 333;accordNueces County v. Ferguson,97 S.W.3d 205, 215(Tex. App.-Corpus Christi 2002, no pet.);Jackson,881 S.W.2d at 500;seeMinix v. Gonzales,162 S.W.3d 635, 639(Tex. App.-Houston[14th Dist.]2005, no pet.).

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.-Waco2005, pet. denied)(quotingJohnson v. Campbell,142 S.W.3d 592, 594(Tex. App.-Texarkana2004, pet. denied))(emphasis inTex. State Technical Coll.);accordJoe 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 Christi2005, 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 Antonio1992, 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(citingPickell v. Brooks,846 S.W.2d 421, 424(Tex. App.-Austin1992, 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 alsoSpellmon 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.Pickellat 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."Fergusonat 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...