Patterson v. Marcantel, 09-16-00173-CV

• Decision Date: 26 October 2017
• Docket Number: NO. 09-16-00173-CV,09-16-00173-CV
• Parties: HENRY PATTERSON, JAMES COOPER, STEVEN TRAVIS GREENE, REX EVANS, MARK ELLINGTON AND LIBERTY COUNTY, TEXAS, Appellants v. JEREMY R. MARCANTEL, Appellee
• Court: Texas Court of Appeals

HENRY PATTERSON, JAMES COOPER,STEVEN TRAVIS GREENE, REX EVANS, MARK ELLINGTONAND LIBERTY COUNTY, TEXAS, Appellants v. JEREMY R. MARCANTEL, Appellee

NO. 09-16-00173-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on October 4, 2016

October 26, 2017

On Appeal from the 253rd District Court Liberty County, Texas

Trial Cause No. CV1408497

MEMORANDUM OPINION

This is an accelerated appeal of an interlocutory order denying the Defendants' motion for summary judgment which included pleas to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5), (8) (West Supp. 2016). The Defendants appealed. Marcantel filed the underlying lawsuit after he was terminated from his employment as a deputy sheriff with the Liberty County Sheriff's Office. Marcantel alleged that the Defendants engaged in wrongful conduct that led to and continued after his termination. We reverse in part.

Plaintiff's Original Petition

On August 18, 2014, Marcantel filed Plaintiff's Original Petition, naming as defendants Henry W. Patterson, James M. Cooper Jr., Steven T. Greene, Rex E. Evans, Mark D. Ellington, and Liberty County, Texas.¹ Marcantel sued Patterson, Cooper, Greene, Evans, and Ellington as individuals and in their official capacities.

According to Marcantel, he stopped a truck driver on January 7, 2011. The stop resulted in charges against the driver for traffic violations and possession of illegal drugs, and the driver's uninsured truck was towed (the "truck incident"). In his original petition, Marcantel alleged that the driver filed a complaint against Marcantel accusing Marcantel of setting up the traffic stop in order to "repossess" the driver's vehicle. Marcantel also alleged that the Defendants investigated the complaint, terminated Marcantel's employment "under dishonorable circumstances" on March 4, 2011, and Marcantel was arrested for and ultimately indicted for official oppression.

Marcantel further alleged that he administratively appealed the termination of his employment, and in February of 2012, the Texas State Office of Administrative Hearings (SOAH) issued an order that "exonerated Marcantel of the misconduct allegations" and directed the Sheriff's Office to change Marcantel's service records to reflect an "honorable discharge." According to Marcantel, the Defendants "feared exposure of misconduct within the sheriff's office and [] attempted to silence and discredit Marcantel using their official public capacity and public resources." Marcantel brought the following claims against the Defendants:

1. interference with the right to life, liberty, and property under the Texas Constitution;

2. interference with the right to work under the Texas Constitution and the Business and Commerce Code;

3. defamation under the Texas Constitution and the Civil Practice and Remedies Code;

4. equal protection and denial of due process under the Texas Constitution;

5. equal protection and denial of liberty and property rights under the Texas Constitution;

6. malicious prosecution under the Texas Constitution;

7. false imprisonment under the Texas Constitution;

8. intentional infliction of emotional distress;

9. negligent hiring, supervision, training, or retention;

10. wrongful discharge under the Texas Whistleblower Act; and

11. breach of a contract of employment.

Marcantel alleged that his "discharge from employment is believed to have been in retaliation because the defendants feared that Marcantel knew of misconduct within the sheriff's office and that he would report it to authorities."

Marcantel also alleged that he suffered irreparable harm as a result of Defendants' wrongful conduct, including financial hardship, permanent injury to his personal and professional reputation, and pain and suffering. The original petition sought money damages and "a permanent injunction enjoining the defendants and their agents from engaging in any further harmful conduct against Marcantel[.]"

In the original petition, Marcantel alleged the following regarding the "waiver of immunity":

[] The defendant Liberty County, Texas is a political subdivision of the State of Texas and all known defendants were agents of this governmental unit during the events that give rise to this case. The doctrine of governmental immunity affords these defendants some protection from suit and liability while engaged in governmental acts.

[] In this case, the defendants willfully acted with conscious disregard of the clearly established rights, immunities, and privileges of Marcantel. The defendants acted maliciously in bad faith with intent to harm Marcantel and the defendants did so while acting under Color of State Law using public resources. The individual defendants are not entitled to immunity.

Defendants' Motion for Summary Judgment

On October 17, 2014, the Defendants filed an answer, which included a general denial and various defenses including "sovereign, governmental, official, and qualified immunity." Defendants subsequently deposed Marcantel and on March 10, 2015, the Defendants filed Defendants' Traditional and No-Evidence Motion forSummary Judgment arguing that "the Court lacks jurisdiction over all Marcantel's claims, except for his claims under the Texas Constitution."

According to the summary judgment motion,

. . . the summary judgment evidence conclusively establishes that Liberty County terminated Marcantel's employment on March 4, 2011 for legitimate non-discriminatory and non-retaliatory reasons. More specifically—and in addition to Marcantel's documented history of poor performance and disciplinary action—the County reasonably concluded that Marcantel improperly targeted a vehicle for a traffic stop and its driver for an arrest, to help his friend obtain a financial benefit. This same incident also provided probable cause to support Marcantel's November 15, 2011 indictment for official oppression.

Defendants alleged that Marcantel had been counseled for performance issues numerous times in 2007, 2008, and 2011. In the motion for summary judgment, the Defendants described an incident in February of 2011, during which Marcantel was dispatched to an alarm call at a Sam Houston Electrical Co-Op (SHECO) substation. The motion alleged that Marcantel performed only a brief search before clearing the call, and that an hour later, SHECO employees discovered that a hole had been cut in the fence and a "massive theft" of more than $100,000 had occurred. As a result of the SHECO incident, an internal affairs investigation occurred, which concluded that Marcantel had violated policies regarding "rules of conduct, performance of duties, and conducting an investigation."

The motion also addressed the January 2011 truck incident. According to the Defendants, Marcantel was friends with a man whose mother was the owner of the truck. The friend's mother sold the truck to the driver on a payment plan. Defendants alleged that, after arresting the driver of the truck, Marcantel telephoned his friend (whose mother was selling the truck) and advised him the driver had been arrested and that the truck was being towed. In a subsequent internal affairs investigation, Marcantel acknowledged that he understood the driver had alleged that Marcantel had worked with the truck owner to help repossess the truck.

Defendants also addressed Marcantel's claim of retaliatory discharge in the motion for summary judgment. According to the Defendants, Marcantel's Whistleblower Act claim related to Marcantel's contention that he found a draft press release prepared by Evans. In his deposition, Marcantel testified that Sheriff Patterson had instructed deputies not to make any type of press release, that the press release prepared by Evans was in violation of that instruction, and that Marcantel had reported this violation to his supervisor.

Defendants alleged further that, as a result of the truck incident, SHECO incident, and subsequent investigations, the County terminated Marcantel's employment. According to Defendants, there is no competent evidence of an administrative appeal hearing. Regarding Marcantel's indictment, Defendantsexplained that Marcantel testified in his deposition that he had an opportunity to testify at the grand jury but he chose not to testify.

Defendants argued that Marcantel's constitutional claims should be denied because money damages are not available for claims under the Texas Constitution and because the injunctive relief Marcantel requested was "inappropriate[]" and "impermissibly vague."²

Defendants argued that after a reasonable time for discovery, there was:

(1) no evidence Defendants violated any right guaranteed to Marcantel under the Texas Constitution, including no evidence that Defendants:

a. conducted any unreasonable search or seizure;

b. deprived Marcantel of any right without due process;

c. denied him equal protection by treating him differently based on any government classification;

d. initiated a criminal prosecution against him without probable cause;

e. initiated a criminal prosecution against him out of malice;

f. imprisoned him without lawful authority; or

g. defamed Marcantel resulting in an adverse effect on any other recognized interest Marcantel may have had;

(2) no evidence Plaintiff's claims fit into any waiver of immunity;

(3) no evidence the individual Defendants failed to perform discretionary duties, in good faith, and within the scope of theirauthority, to overcome official immunity defenses for the individual Defendants and Liberty County;

(4) no evidence Defendants initiated a criminal prosecution without probable cause or initiated a criminal prosecution out of malice;

(5) no evidence Defendants imprisoned Marcantel without lawful authority;

(6) no evidence Defendants engaged in "extreme and outrageous" conduct that was intended to cause severe emotional distress;

(7) no evidence Defendants caused severe emotional distress;

(8) no evidence Defendants owed any duty or violated any duty with respect to the hiring, training,

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