Franks v. Zwicke, 04-12-00529-CV

Decision Date17 April 2013
Docket NumberNo. 04-12-00529-CV,04-12-00529-CV
PartiesLorenzo FRANKS Appellant v. Arnold S. ZWICKE, Sheriff, and Deputies of the Guadalupe County Sheriff's Department, Appellees
CourtTexas Court of Appeals

From County Court at Law No. 1, Guadalupe County, Texas

Honorable Linda Z. Jones, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Marialyn Barnard, Justice

Luz Elena D. Chapa, Justice


Appellant Lorenzo Franks, a prison inmate, appeals the trial court's judgment granting the plea to the jurisdiction filed by appellees Arnold S. Zwicke, Sheriff, and Deputies of the Guadalupe County Sheriff's Department (collectively "Zwicke"). Franks argues the trial court erred in: (1) granting Zwicke's plea to the jurisdiction based on governmental immunity; (2) holding a hearing in his absence; (3) making no findings of fact and conclusions of law; and (4) dismissing his claim with prejudice. We affirm the trial court's judgment.


Deputies from the Guadalupe County Sheriff's Office were dispatched to investigate a potential break-in at a Guadalupe County facility. Upon arrival, the deputies discovered a break-in in progress and an unknown subject, later identified as Franks, lying underneath a truck inside the garage area of the facility.

Franks was instructed multiple times to move out from underneath the truck. Although he was awake and opened his eyes several times to view the officers, Franks refused to comply with the deputies' commands. After noticing Franks had a knife, the deputies sprayed Franks with oleoresin capsicum ("OC") and pulled him from under the truck. Franks refused to cooperate with the deputies and spit on one of them. The deputies restrained Franks and called Emergency Medical Services at the time of the arrest for the purpose of OC decontamination.

Franks admitted he was under the influence of alcohol, cocaine, and Xanax at the time of his arrest. Franks had a box cutter and several other items he apparently used to force his way into the facility. Franks also had keys to a stolen vehicle in his pocket. Although Franks claimed he had no previous arrests, deputies later determined Franks had been using the alias "Freddie Lee Walker," and had been convicted multiple times for burglary, theft, and larceny.

Months after his conviction, Franks filed a petition with the justice court alleging claims for personal injuries suffered during his arrest. Franks claimed the deputies knocked out four of his teeth by "intentionally" hitting him during his arrest. Franks did not plead a waiver of immunity under the Texas Tort Claims Act.

Zwicke filed a plea to the jurisdiction, plea in abatement, and original answer asserting governmental immunity. Furthermore, Zwicke pled Franks's claims should be abated because hefailed to present his claims to the Guadalupe County Commissioner's Court prior to filing suit in accordance with section 89.004 of the Texas Local Government Code.

Franks filed a response and a notice with the Commissioner's Court. A notice of hearing on the plea was mailed to Franks, and a bench warrant was issued. The justice court granted Zwicke's plea to the jurisdiction and dismissed Franks's claims with prejudice.

Franks appealed to the county court. After a hearing was set, Franks filed two motions requesting a bench warrant to attend the hearing, but the trial court did not rule on his motions. At the hearing, the trial court asked Zwicke to submit additional authority on the court's ability to grant a plea to the jurisdiction in Franks's absence. After hearing arguments and reviewing the additional authority provided by Zwicke, the trial court affirmed the granting of the plea to the jurisdiction. Franks then perfected this appeal.


Franks argues the trial court erred in: (1) granting Zwicke's plea to the jurisdiction based on governmental immunity; (2) holding a hearing in his absence; (3) making no findings of fact and conclusions of law; and (4) dismissing his claim with prejudice.

Plea to the Jurisdiction
Standard of Review

Governmental immunity from suit defeats a trial court's subject matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). A plea to the jurisdiction challenges a court's authority to determine the subject matter of the action. Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 387 (Tex. App—Fort Worth 2008, no pet.) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). Therefore, a claimof governmental immunity is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 226.

Whether a court has subject matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction are questions of law. Id.; Perez v. City of Dallas, 180 S.W.3d 906, 909 (Tex. App—Dallas 2005, no pet.). Accordingly, an appellate court should review de novo a challenge to the trial court's subject matter jurisdiction. Miranda, 133 S.W.3d at 226; Perez, 180 S.W.3d at 909.

A government employee has the same governmental immunity from suit in his official capacity as his employer, unless he has acted ultra vires. Univ. of Tex. Health Sci. Center at San Antonio v. Bailey, 332 S.W.3d 395, 401 (Tex. 2011) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009)); Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) ("When a state official files a plea to the jurisdiction, the official is invoking the sovereign immunity from suit held by the government itself."). Even then, "the suit is, for all practical purposes, against the state." Heinrich, 284 S.W.3d at 373.


Franks sued Sheriff Zwicke and the individual arresting deputies for injuries he allegedly suffered during his arrest. However, in his pleadings, Franks did not specify whether he was suing the sheriff and the deputies in their official or individual capacities. Generally, when a plaintiff sues government officials and employees, but does not indicate whether the employees are sued in their official or individual capacity, they are sued in their official capacity. See Bailey, 332 S.W.3d at 401 (noting suit against government officers is in effect suit against state itself); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008) (noting plaintiff must decide at outset whether governmental employee acted independently and is solelyliable, or if he acted within general scope of his or her employment such that governmental unit is vicariously liable); TEX. CIV. PRAC. & REM. CODE § 101.106(f) ("If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment . . . the suit is considered to be against the employee in the employee's official capacity only.").

In this case, Franks sued Sheriff Zwicke and the deputies for actions that allegedly occurred during his arrest, and thus during the scope of the sheriff's and deputies' employment. Accordingly, we hold Franks sued the sheriff and deputies in their official capacity. See id. § 101.106(f). To the extent the sheriff and the individual deputies have been sued by Franks, it is a suit against the governmental entity—in this case, Guadalupe County. See Bailey, 332 S.W.3d at 401. Accordingly, Franks's claims against the sheriff and the individual deputies were subject to a plea to the jurisdiction based on governmental immunity.

Governmental immunity constitutes immunity from both suit and liability. Miranda, 133 S.W.3d at 224; Tex. Ass'n of Sch. Bds. Risk Mgmt. Fund v. Benavides Indep. Sch. Dist., 221 S.W.3d 732, 734 (Tex. App.—San Antonio 2007, no pet.). Immunity from suit deprives a court of subject matter jurisdiction and bars a suit against a governmental entity unless there is a clear and unambiguous waiver of that immunity. Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842-43 (Tex. 2009); Miranda, 133 S.W.3d at 224.

Guadalupe County is a governmental unit entitled to governmental immunity, and thus, to immunity from suit. Catalina Dev., Inc. v. Cnty. of El Paso, 121 S.W.3d 704, 705 (Tex. 2003) (noting county is governmental unit protected by sovereign immunity); TEX. CIV. PRAC. & REM. CODE § 101.001(3)(B) (West 2011) (defining governmental unit, among other things, as political subdivision of state including any county). When filing a suit for damages against agovernmental entity, the plaintiff must affirmatively plead and prove the court's jurisdiction to hear the lawsuit under some statute that waives the governmental entity's immunity from suit, namely the Texas Tort Claims Act ("TTCA"). See Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Because Franks did not allege a waiver of immunity in his petition, his claims were properly dismissed.

Even if we were to consider whether Zwicke waived immunity under the TTCA, we would find no such waiver occurred. Under the TTCA, governmental entities waive their immunity from suit in narrowly defined circumstances, including suits against governmental units for personal injuries or property damage caused by: (1) the use of motor-driven vehicle or equipment; (2) a condition or use of tangible personal or real property; or (3) a premise defect. TEX. CIV. PRAC. & REM. CODE §§ 101.021, 101.022.

Franks's claims do not arise from the use of a motor-driven vehicle; do not arise from a condition or use of tangible personal property; nor do they arise from a premise defect. Rather, Franks alleged intentional acts by the Guadalupe County sheriff and deputies—specifically, that the officers hit him in the face, mouth, arms, and legs during his arrest. If true, we find these alleged acts would amount to an assault,1 and are not covered under the TTCA, as the statute states it does not apply to claims arising out of...

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