Shugart v. Thompson

• Decision Date: 12 January 2017
• Docket Number: No. 06-15-00101-CV,06-15-00101-CV
• Parties: RICKY J. SHUGART, Appellant v. DAVID THOMPSON, A.K.A. "LEAD AGENT," A.K.A. "AGENTS" AND UNKNOWN DEPUTIES, A.K.A. "AGENTS" EACH IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, SHERIFF'S DEPARTMENT OF FANNIN COUNTY, Appellees
• Court: Texas Court of Appeals

RICKY J. SHUGART, Appellant v. DAVID THOMPSON, A.K.A. "LEAD AGENT," A.K.A. "AGENTS" AND UNKNOWNDEPUTIES, A.K.A. "AGENTS" EACH IN THEIR INDIVIDUAL AND OFFICIALCAPACITIES, SHERIFF'S DEPARTMENT OF FANNIN COUNTY, Appellees

No. 06-15-00101-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: March 17, 2016

January 12, 2017

On Appeal from the 336th District Court Fannin County, Texas

Trial Court No. CV-15-42338

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Burgess MEMORANDUM OPINION

Ricky J. Shugart, an inmate in a Texas Department of Criminal Justice prison appeals, pro se, from the trial court's order dismissing his pro se, in forma pauperis civil suit against the Sheriff's Department of Fannin County (FCSD) and several deputy sheriffs in their official and individual capacities. By five issues, Shugart claims that the trial court erred in dismissing his lawsuit with prejudice.

We affirm in part and reverse in part the trial court's order.

I. Factual and Procedural Background

According to Shugart's allegations, in September 2013,¹ several officers with the FCSD illegally entered onto his property and into his home without a warrant, handcuffing him and his family. Shugart admitted to the officers that he had a small bag of marihuana in a drawer next to a chair in the living room. He was arrested and escorted outside, where he saw agents going in and out of a greenhouse—described by Shugart as a "large dome building built & designed to house avocado trees"—behind his residence. One of the deputies commented about the large quantity of marihuana located in the greenhouse. Shugart later pled guilty to possession of over fifty, but under 2,000, pounds of marihuana and was sentenced to ten years' imprisonment.²

In September 2015, Shugart, proceeding pro se and in forma pauperis, filed a civil suit against the FCSD, David Thompson of the FCSD in his official and individual capacities, as well as "unknown deputies" of the FCSD in their official and individual capacities, seeking damages and other relief because the officers "arbitrarily, irrationally, and without call or essential need destroyed his 3 story dome Greenhouse Building during an illegal entry, search & seizure on his residence and property." Appellees filed a plea to the jurisdiction and a motion to dismiss Shugart's petition under Chapter 14 of the Texas Civil Practice and Remedies Code, arguing that it was "without merit [and] fail[ed] in the face of official and governmental immunity" and that any chance of ultimate success [was] slight." Without holding a hearing, the trial court dismissed Shugart's petition with prejudice, but did not specify the grounds for so doing.

II. The Trial Court's Ruling Granting Appellees' Plea to the Jurisdiction

Because Appellees' plea to the jurisdiction implicates the trial court's subject-matter jurisdiction, we address it first.

A. Standard of Review

A plea to the jurisdiction seeks dismissal because the trial court lacks subject-matter jurisdiction to consider the cause. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). When a governmental entity is immune from suit, a plea to the jurisdiction is the proper procedure for challenging a suit filed against the entity. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). "Whether a court has subject matter jurisdiction is a question of law" and is subject to de novo review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Hoff v. Nueces Cty., 153 S.W.3d 45, 48 (Tex. 2004); Tex. Dep't of Family & Protective Servs. v. Atwood,176 S.W.3d 522, 527 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). When reviewing a trial court's order sustaining a plea to the jurisdiction, an appellate court is required to accept all the factual allegations in the plaintiff's petition as true. Axtell v. Univ. of Tex., 69 S.W.3d 261, 264 (Tex. App.—Austin 2002, no pet.). Also, the appellate court must examine the petitioner's intent and construe his pleadings in his favor. Miranda, 133 S.W.3d at 226.

B. Identification of the Legal Bases for Shugart's Claims

As an initial matter, we must identify the legal bases for Shugart's claims for relief. In his petition, Shugart alleges,

Petitioner seeks action for injuries, damages, costs, declaratory and injunctive relief in law, common law, tort, suit in equity, or other proper proceedings for redress alleging Respondents acting individually & under pretext of State law has trespassed, destroyed private property without compensation, and unreasonably violated Petitioner's Texas Constitutional rights; for replevin, littering & illegal dumping (of the dome building debris) on Petitioner's property, & illegal forfeiture.

(Footnote omitted). In a footnote, he identifies the source of his "tort" claims as "Civil Practices & Remedies, Title 5, Ch. 101, Subchapter B, §101.021(1)-(2)," which is the Texas Tort Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.108 (West 2011 & West Supp. 2016). Shugart goes on to specify three causes of action: (1) a claim that Appellees "deprived plaintiff Shugart of his property . . . without due course of Texas law in violation of the Texas Constitution, [and] did then and there [take] said property without compensation"; (2) "Collective Causes of Action Under General Heading, a.k.a. 'Trespass & Various Illegal Search & Seizures'"; and (3) causes of action "Seeking Declaratory Judgment & Injunctive Relief" challenging "Appellees Constitutionality of Art. 481.15[3](2) and/or Art. 481.002(17), Tex. Health & Safety Code Ann. . . ."

Although Shugart asserts only the TTCA as legal authority for his causes of action in tort, the TTCA "is the only, albeit limited, avenue for common-law recovery against the government. . . ." Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008). Accordingly, all of Shugart's common law claims for damages for the destruction of his property fall under the TTCA, not just his last claims. Consequently, Shugart's claims can be grouped into the following three categories: (1) common law claims for damages for the destruction of property under the TTCA, (2) a claim for the unconstitutional taking of his property without compensation in violation of Article I, Section 17, of the Texas Constitution, and (3) a request for declaratory judgment that Sections 481.002(17) and/or 481.153(2) of the Texas Health and Safety Code are unconstitutional as applied to him, together with injunctive relief. We will address the propriety of the trial court's order granting Appellees' plea to the jurisdiction as to these three categories of claims.

C. Appellees Are Immune From Shugart's TTCA Claims

1. Claims Against the FCSD

The FCSD is a governmental unit entitled to governmental immunity. See Catalina Dev., Inc. v. Cty. of El Paso, 121 S.W.3d 704, 705 (Tex. 2003) (noting that a county is governmental unit protected by sovereign immunity); see also Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) ("Sovereign immunity protects Appellees and its various divisions, such as agencies and boards, from suit and liability, [and] governmental immunity provides similar protection to the political subdivisions of Appellees, such as counties, cities, and schooldistricts.").³ When filing a suit for damages against a governmental entity, a plaintiff must affirmatively plead and prove the court's jurisdiction to hear the lawsuit under the TTCA. See Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

The TTCA provides a limited waiver of immunity for certain suits against governmental entities. Garcia, 253 S.W.3d at 655. Nevertheless, "[i]n order for immunity to be waived . . ., the claim must arise under one of the three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exceptions from waiver." Morgan v. City of Alvin, 175 S.W.3d 408, 417 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The three general areas of liability in which immunity is waived under the TTCA are: (1) property damage, personal injury, or death caused by an employee's use of a motor-driven vehicle within the scope of his employment; (2) personal injury or death caused by a condition or use of tangible personal or real property; and (3) premises defects. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021-101.022.

Although the petition in this case alleges that the destruction of Shugart's greenhouse was "wanton & malicious . . . and/or negligent," Shugart fails to allege how the deputies were negligent in their actions or how that negligence proximately caused the destruction of the greenhouse. Moreover, although the petition mentions negligence, the specific actions alleged are clearly intentional in nature.⁴ Intentional torts by government employees, like the ones alleged by Shugart,are not covered under the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2); see also Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (stating that "[t]he Texas Tort Claims Act provides that sovereign immunity exists for intentional torts"). Therefore, Shugart has failed to allege conduct that is actionable under that Act, and his claims against the FCSD are barred by sovereign immunity.

2. Claims Against The Individual Appellees

Generally, except where a government employee acts outside the scope of his employment, "a suit against a government employee in his official capacity is a suit against his government employer," and "an employee sued in his official capacity has the same governmental immunity, derivatively, as his government employer." Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex. 2011). Nevertheless, under common law, "public employees (like agents generally) have always been individually liable for their own torts, even when committed in the course of employment, and suit may be brought against a...