Sauls v. Montgomery County

• Decision Date: 18 May 2000
• Citation: 18 S.W.3d 310
• Parties: (Tex.App.-Beaumont 2000) SHERMAN SAULS, Appellant V. MONTGOMERY COUNTY AND GUY WILLIAMS, individually and in his official capacity as SHERIFF OF MONTGOMERY COUNTY, Appellees NO. 09-98-175 CV
• Court: Texas Court of Appeals

Page 310

18 S.W.3d 310 (Tex.App.-Beaumont 2000)

SHERMAN SAULS, Appellant

V.

MONTGOMERY COUNTY AND GUY WILLIAMS, individually and in his official capacity as SHERIFF OF MONTGOMERY COUNTY, Appellees

NO. 09-98-175 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted November 4, 1999

Decided May 18, 2000

On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 96-03-00843-CV

Before Walker, C.J., Burgess and Stover, JJ.

O P I N I O N

DON BURGESS, Justice

Appellant Sherman Sauls ("Sauls") brings this appeal from a summary judgment granted in favor of appellees Montgomery County and Guy Williams, individually and in his official capacity as Sheriff of Montgomery County.¹

In his suit against the appellees, Sauls contended he was wrongfully terminated from employment with the Montgomery County Sheriff's Department. He alleged violations of the Texas Commission on Human Rights Act ("TCHRA"), as codified in the Texas Labor Code.² Sauls also claimed that appellees "engaged in a pattern and practice of discriminatory conduct against [him] with respect to the terms, conditions, and privileges of his employment with [the Sheriff's Department] because he is black." He further alleged that appellees retaliated against him for "opposing the race-based discrimination." Such conduct, according to Sauls, amounted to intentional emotional distress. Sauls additionally alleged violations of his Fourteenth Amendment rights to due process and of 42 U.S.C. § 1983 and 42 U.S.C. § 1981.

Appellees filed a motion for summary judgment and memorandum of law as a single instrument. In their motion for summary judgment, appellees set forth three grounds and then urged three additional grounds in their memorandum. We consider five of the six arguments as having been before the trial court.³ They are as follows: (1) Williams is entitled to official immunity; (2) Montgomery County has sovereign immunity that has not been waived and immunity based on Williams's official immunity; (3) governmental units are not liable for intentional torts of their employees; (4) Sauls lacked standing to bring suit under TCHRA;⁴ and (5) Montgomery County has not given Sauls permission to sue under 42 U.S.C. § 1983, and without such permission, a § 1983 civil rights claim may not be filed in a state court and should be dismissed. Without specifying the grounds relied upon, the trial court granted appellees' motion for summary judgment.

On appeal, Sauls argues: (1) the trial court erred in granting summary judgment against Sauls by holding he was not an "employee" under TCHRA; (2) the legislature waived the governmental immunity of Montgomery County and Sheriff Williams under the TCHRA; and (3) the trial court erred in granting summary judgment against Sauls by holding Montgomery County is immune from suits arising under 42 U.S.C. § 1983. Sauls did not include a general issue attacking the summary judgment. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

In reviewing a summary judgment in which the trial court has not provided the basis for its decision, we must review each ground asserted in the motion and affirm the trial court's judgment if any of these grounds is meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79-80 (Tex. 1989). The appellant is required to specifically attack "each possible basis for summary judgment to avoid a waiver of those grounds," unless appellant included a general issue complaining of summary judgment. Warner v. Orange County, 984 S.W.2d 357, 358 (Tex. App.--Beaumont 1999, no pet.)(citing Parrish v. Brooks, 856 S.W.2d 522, 527 (Tex. App.--Texarkana 1993, writ denied). "If summary judgment may have been granted, properly or improperly, on a ground not challenged, the summary judgment must be affirmed." Warner, 984 S.W.2d at 358 (citing Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.--Dallas 1992, writ denied)).

The standards for review of summary judgments are well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be drawn in favor of the non-movant and any doubts resolved in its favor. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When the movant relies on an affirmative defense, such as immunity, the summary judgment evidence must establish each element of the defense as a matter of law. See Johnson & Johnson Medical, Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex. 1996).

We now review each of the summary judgment grounds asserted by appellees to determine if any are meritorious.

Although appellees asserted in their motion for summary judgment that Sauls lacked standing to bring suit under TCHRA, they concede this point on appeal, and we need consider it no further. However, we note that appellees now argue that Sauls's standing is irrelevant, as there is no express waiver of sovereign immunity in the Labor Code nor any waiver of immunity for intentional torts of a governmental unit's officer or employee under the Texas Tort Claims Act. Since appellees' "irrelevancy of standing" argument was not before the trial court, we need not review it for merit. Their immunity arguments, which were before the trial court, are considered below.

Appellees specifically presented three immunity arguments in support of their motion for summary judgment - one as to Williams, and two as to Montgomery County.⁵ As to Williams, they contended he is entitled to official immunity. As to Montgomery County, they contended: (a) it has sovereign immunity that has not been waived, as well as (b) immunity based on Williams's official immunity. We note that Williams was sued individually and in his official capacity as sheriff.

First, we consider whether Montgomery County has sovereign immunity that has not been waived. "Under the doctrine of sovereign immunity, the State is not liable for the negligence of its employees absent constitutional or statutory provision for liability." University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994)(citing Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex. 1976)). Also, it is well settled in Texas that sovereign immunity extends to the State's political subdivisions, protecting them as well from liability for torts of their officers or agents unless a constitutional or statutory provision creates such liability. See State v. Terrell, 588 S.W.2d 784, 785 (Tex. 1979); Wade v. Jackson County, 547 S.W.2d 371, 373 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.)(citing Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562 (1892)). Since Montgomery County is a political subdivision of the State, it is immune from suit, absent a constitutional or statutory waiver of immunity. See Munoz on Behalf of Martinez v. Cameron County, 725 S.W.2d 319, 320 (Tex. App.--Corpus Christi 1986, no writ).

Sauls contends that both the county's immunity and Williams's immunity as an elected official have been waived by the TCHRA.⁶ Though several cases against governmental entities have been decided under the Act,⁷ neither Sauls nor appellees cite any case that has considered whether the TCHRA waives such immunities, and we have found none. Thus, to determine if waiver has occurred, we review the statute itself in light of the three principles established by the Texas Supreme Court.

First, the waiver of governmental immunity is a matter addressed to the Legislature. Second, for the Legislature to waive sovereign immunity, it must do so by clear and unambiguous language. Finally, in accordance with section 311.023 of the Code Construction Act, we must construe the waiver provisions of the [statute] to give effect to the object sought to be attained by the statute.

York, 871 S.W.2d at 177 (citations omitted).

The TCHRA was enacted by the Texas Legislature in 1993. Act of May 12, 1993, 73rd Leg., R.S. ch. 269, § 1, 1993 Tex. Gen. Law 987. Among its objectives are:

(1) providing for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments;

(2) securing for persons in this state, including persons with disabilities, freedom from discrimination in certain employment transactions, in order to protect their personal dignity;

(3) make available to the state the full productive capacities of persons in this state;

(4) promote the interests, rights, and privileges of persons in this state.

See Tex. Lab. Code Ann. § 21.001. The Act prohibits discrimination by an employer on the basis of "race, color, disability, religion, sex, national origin, or age." Tex. Lab. Code Ann. § 21.051. Thus, as observed by the San Antonio court of appeals, "[t]he act essentially codified federal employment law." Perez v. Living Centers-Devcon, Inc., 963 S.W.2d 870, 872 (Tex. App.--San Antonio 1998, writ denied).

Certain of the Act's definitions aid us in determining whether it waives sovereign immunity. An "employee" is "an individual employed by an employer, including an individual subject to the civil service laws of this state or a political subdivision of this state, except that the term does not include an individual elected to public office in this state or a political subdivision of this state." Tex. Lab. Code Ann. § 21.002(7). Under this definition, Sauls, who was terminated from his job with the Montgomery County Sheriff's Department, is an "employee." Further, "employer" includes: (1) "an individual elected to public office in this state or a political subdivision of this state"; and (2) "a county, municipality, state agency, or state instrumentality, regardless of the number of...