Roccaforte v. Jefferson County

• Decision Date: 05 March 2009
• Docket Number: No. 09-08-00420-CV.,09-08-00420-CV.
• Citation: 281 S.W.3d 230
• Parties: Larry ROCCAFORTE, Appellant, v. JEFFERSON COUNTY, Texas, Appellee.
• Court: Texas Court of Appeals

281 S.W.3d 230

Larry ROCCAFORTE, Appellant, v. JEFFERSON COUNTY, Texas, Appellee.

No. 09-08-00420-CV.

Court of Appeals of Texas, Beaumont.

Submitted January 6, 2009.

Decided March 5, 2009.

Larry Watts, Missouri City, for appellant.

Tom Maness, Crim. Dist. Atty., Thomas F. Rugg, Steven L. Wiggins, Asst. Dist. Atty's., Beaumont, for appellee.

Before GAULTNEY, KREGER, and HORTON, JJ.

OPINION

DAVID GAULTNEY, Justice.

Larry Roccaforte sued Jefferson County, a Jefferson County constable, and two Jefferson County employees, under 42 U.S.C.A. § 1983 (West 2003). Roccaforte also asked the trial court to declare that Jefferson County violated his rights under the Texas Constitution. Relying on section 89.0041 of the Texas Local Government Code, the County filed a plea to the jurisdiction and motion to dismiss. See TEX. LOC. GOV'T CODE ANN. § 89.0041 (Vernon 2008). The trial court granted the plea and dismissed the suit against the County.¹ Because dismissal was appropriate, though not for jurisdictional reasons we modify the order to reflect a dismissal without prejudice, and affirm the order as modified.

SECTION 89.0041

The County argued in the trial court that a plaintiff must demonstrate compliance with section 89.0041 of the Local Government Code to establish the district court's jurisdiction. Section 89.0041 provides as follows:

(a) A person filing suit against a county or against a county official in the official's capacity as a county official shall deliver written notice to:

(1) the county judge; and

(2) the county or district attorney having jurisdiction to defend the county in a civil suit.

(b) The written notice must be delivered by certified or registered mail by the 30th business day after suit is filed and contain:

(1) the style and cause number of the suit;

(2) the court in which the suit was filed;

(3) the date on which the suit was filed; and

(4) the name of the person filing suit.

(c) If a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismissal made by the county or the county official.

TEX. LOC. GOV'T CODE ANN. § 89.0041. Roccaforte did not comply with the statute.

JURISDICTION

Roccaforte argues section 89.0041 is not jurisdictional, and the trial court therefore erred in granting the plea to the jurisdiction. The County responds that section 311.034 of the Texas Government Code makes section 89.0041, and notice statutes like it, jurisdictional. See TEX. GOV'T CODE ANN. § 311.034 (Vernon Supp. 2008). Section 311.034 provides that "[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity." Id.

The Fourth and Fifth Courts of Appeals have held that section 89.0041 is not jurisdictional because the statute does not relate to prerequisites to filing suit. See County of Bexar v. Bruton, 256 S.W.3d 345, 346-49 (Tex.App.-San Antonio 2008, no pet.); Dallas County v. Coskey, 247 S.W.3d 753, 754-56 (Tex.App.-Dallas 2008, pet. denied). The Thirteenth Court of Appeals has held that, even though the notice requirement in section 89.0041 is not a prerequisite to filing suit, the "Legislature clearly intended [this notice] to be required to maintain the suit." See Ballesteros v. Nueces County, No. 13-06-405-CV, 2007 WL 2473454, at *2-4 (Tex.App.-Corpus Christi Aug.31, 2007, no pet.) (mem. op.). Focusing on the concept of notice in the two statutes, rather than the "prerequisite" language in section 311.034, the Thirteenth Court found the plaintiff's failure to comply with section 89.0041 deprived the trial court of subject matter jurisdiction. Id. at *4.

The County argues that "[i]n 2005, the Legislature made clear that the prerequisites to suits against governmental entities are jurisdictional requirements. The legislature amended the Texas Government Code § 311.034 by stating:

`Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.'

TEX. GOV'T.CODE § 311.034 (Vernon Supp. 2006)."

The portion of section 311.034 relied upon by Jefferson County applies to actions taken before a suit is filed. See Coskey, 247 S.W.3d at 755. The notice required by section 89.0041 is to be delivered only after suit is filed. See TEX. LOC.GOV'T CODE ANN. § 89.0041(b). The suit may proceed without the required notice if the county or county official does not file a motion to dismiss. See id. § 89.0041(c). The statute establishes a procedural bar to the continuation of suit if the county or county official files a proper motion to dismiss under section 89.0041, but the notice is not a statutory prerequisite to a suit. A dismissal order pursuant to section 89.0041 is not for lack of jurisdiction in the district court. See Bruton, 256 S.W.3d at 349 ("Because section 89.0041's notice provision is not a jurisdictional requirement, the trial court did not err in denying [the] County's plea to the jurisdiction."); Coskey, 247 S.W.3d at 755 ("Because the quoted provision of section 311.034 applies to actions taken before a suit is filed, by its plain language it does not apply to the post-suit written notice required by section 89.0041(b)."). Issue three is sustained.

MOTION TO DISMISS

The trial court's order granted the plea to the jurisdiction and dismissed the suit against the County. The County pled alternatively that the failure to comply with section 89.0041 was a ground for the motion to dismiss under section 89.0041(c). Though the requirements of section 89.0041 are not jurisdictional, we will nevertheless uphold the trial court's dismissal order on any valid theory supported by the record. See Wood v. Walker, No. 07-05-0392-CV, 2007 WL 911825, at *2 (Tex. App.-Amarillo Mar. 27, 2007, no pet.) ("Although the trial court's order of dismissal purports to be based upon the Plea to the Jurisdiction and not the Motion to Dismiss, ... this Court must affirm that order if there is any legal theory supported by the evidence upon which that decision could be affirmed."); see also Luxenberg v. Marshall, 835 S.W.2d 136, 142 (Tex.App.-Dallas 1992, orig. proceeding) ("We focus on the result reached by the trial court, rather than the reasons stated in the order."). If a plaintiff does not comply with section 89.0041, the statute provides for a dismissal of the suit. See TEX. LOC. GOV'T CODE ANN. § 89.0041(c). We therefore address appellant's other issues attacking the dismissal order.

PREEMPTION

Roccaforte argues that Texas statutory prerequisites to maintaining a lawsuit against the County do not apply to actions under section 1983 of Title 42 because of the preemption doctrine. See 42 U.S.C.A. § 1983. He relies on Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), and Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), both of which deal with prerequisites to bringing suit and with federal law preemption.

"Section 1983 creates a private right of action for violations of an individual's federally guaranteed rights by those acting under color of state law." Tex. Dep't of Criminal Justice v. Thomas, 263 S.W.3d 212, 219 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing Richardson v. McKnight, 521 U.S. 399, 403, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997)). The central objective of section 1983 is to "`ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief.'" Felder, 487 U.S. at 139, 108 S.Ct. 2302 (quoting Burnett v. Grattan, 468 U.S. 42, 55, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984)). A state's law will be preempted when it is inconsistent with the goals of the federal civil rights law or stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. See id. at 139, 141, 108 S.Ct. 2302. "[W]here state courts entertain a federally created cause of action, the `federal right cannot be defeated by the forms of local practice.'" Id. at 138, 108 S.Ct. 2302 (quoting Brown v. W. Ry. of Ala., 338 U.S. 294, 296, 70 S.Ct. 105, 94 L.Ed. 100 (1949)); see also Patsy, 457 U.S. at 516, 102 S.Ct. 2557; Ogletree v. Glen Rose Indep. Sch. Dist., 226 S.W.3d 629, 633 (Tex. App.-Waco 2007, no pet.); Dallas County v. Gonzales, 183 S.W.3d 94, 109 (Tex.App.-Dallas, 2006, pet.denied).

The Wisconsin statute at issue in Felder provided that, before a claimant could sue a state or local governmental entity or officer in state court, the claimant was required to notify the governmental defendant of the circumstances giving rise to the claim, the amount of the claim, and his or her intent to hold the named defendant liable. Felder, 487 U.S. at 134, 108 S.Ct. 2302. Further, the state statute required that, in order to afford the defendant an opportunity to consider the requested relief, the claimant had to refrain from filing suit for 120 days after providing the notice to the governmental defendant. Id. Failure to comply with the Wisconsin statute's requirements constituted grounds for dismissal of the action. Id.

The Supreme Court explained that the state statute undermined section 1983 in several ways. Felder, 487 U.S. at 141-42, 108 S.Ct. 2302. First, the state statute conditioned the right of recovery that Congress authorized in section 1983 "to minimize governmental liability"; and the statute "condition[ed] the right to bring suit against the very persons and entities Congress intended to subject to liability." Id. at 141, 144-45, 108 S.Ct. 2302. Second, the notice provision discriminated against the federal right, because the provision afforded the victim of an intentional tort in Wisconsin two years to recognize the compensable nature of the injury, while the civil rights victim in Wisconsin was given only four months to "appreciate that he or she ha[d] been deprived of a federal...