Carlos Rodriguez v. S.A. Duvall ( 2022 )

Affirmed and Memorandum Opinion filed March 3, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00402-CV
CARLOS RODRIGUEZ, Appellant
V.
S.A. DUVALL, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2017-04585
MEMORANDUM OPINION
In this interlocutory appeal, Carlos Rodriguez challenges the trial court’s
dismissal under the Texas Torts Claims Act (the Act) of his claims for assault,
false arrest, and invasion of privacy against Officer S.A. Duvall, a police officer
for the City of Houston Police Department (HPD).1 The Act includes an election of
1
Rodriguez initially filed suit in state court, bringing federal constitutional claims and
state claims, so the case was removed to federal court. The case was remanded back to state
court after Rodriguez dropped his federal constitutional claims.
remedies provision requiring trial courts to grant a motion to dismiss a lawsuit
against a governmental employee sued in an official capacity.2 Concluding that
Duval was acting in his official capacity as a police officer when he arrested
Rodriguez, we affirm.
Background
Rodriguez was invited to a New Year’s Eve party at Hotel ZaZa in Houston,
Texas. According to Rodriguez, he was sitting at a table in a guest suite when
Duvall, who was providing security for the hotel, and two other hotel security
guards entered the room. Duvall injured Rodriguez in the process of detaining and
arresting him.
Duvall moved to dismiss Rodriguez’s claims against him on the grounds that
even though Duvall was working as a security guard, he was discharging his duties
as a police officer when he arrested Rodriguez. Duvall submitted excerpts of his
deposition testimony in support of the motion to dismiss. Duvall stated that at the
time of the incident he was doing security work for the hotel as “extra
employment” approved by HPD. Duvall was working in the hotel bar at
2
Tex. Civ. Prac. & Rem. Code § 101.106(f). We have jurisdiction to hear interlocutory
appeals only as authorized by statute. Lazarides v. Farris, 367 S.W.3d 788, 796 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). The Civil Practice and Remedies Code authorizes appeals
from certain interlocutory orders. Tex. Civ. Prac. & Rem. Code § 51.014(a). For example, a
government employee can appeal the denial of a motion to dismiss based on immunity. Id.
§ 51.014(a)(5); Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (explaining that a
defendant seeking dismissal under section 101.106(f) is asserting a claim of governmental
immunity). The statute, however, does not provide an explicit grant of authority to appeal an
interlocutory order granting a motion to dismiss a governmental employee based on an assertion
of immunity. On the other hand, the statute allows the appeal of an interlocutory order granting a
motion to dismiss a governmental employee sued in an official capacity. See Lazarides, 367
S.W.3d at 797 (citing Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing interlocutory
appeals from orders granting or denying pleas to the jurisdiction filed by governmental units)).
For reasons discussed below, we conclude that Duvall was sued in his official capacity.
Therefore, we have jurisdiction over this interlocutory appeal. See id.; see also Franka, 332
S.W.3d at 371 n.9.
2
approximately 10:45 p.m. when he was contacted by hotel security guard Lee
Mays who told him that there was a loud noise complaint coming from a suite in
the hotel. Mays asked for assistance in approaching the occupants of the suite. The
suite tenant answered the door and after speaking with Mays and Duvall, agreed to
turn down the music in the suite and reduce any other loud noises. Mays and
Duvall then left, and Duvall went back to the bar.
Duvall recounted that at approximately 11:30 p.m., hotel security guard
Terrence Phelps and another hotel security guard approached Duvall about a
narcotics complaint regarding marijuana use in the same suite.3 According to
Duvall, when they approached the suite, “there was actually now a very strong
odor of marijuana coming from the room.” The suite tenant answered the door,
quickly stepped out of the suite, and shut the door. Duvall said that the tenant
asked if he could get in trouble for “what’s going on in there,” denied any
knowledge of what was happening, and consented to let them enter the suite. Then
another person opened the door, and Duvall entered the suite, followed by the other
security guards.
According to Duvall, he “perceived [Rodriguez] to be doing something
illegal” in a back room of the suite. Duvall said he saw a green leafy substance on
a table that Rodriguez was “putting . . . on the ground, stomping on[,] or
throwing . . . into empty red Solo . . . cups on the table.” Duvall “from [his]
training and experience” identified the green leafy substance as marijuana “due to
the smell, the complaint allegations, [and] past experiences.” Duvall ordered
Rodriguez to stop, but Rodriguez “continued moving.” Duvall told Rodriguez he
was a police officer and grabbed Rodriguez’s hand. Duvall told Rodriguez to put
his hands behind his back, but Rodriguez resisted and picked up a metal plate
3
Terrence Phelps is referred to as Terrence Phillips at various points in the record.
3
cover on the table. Duvall grabbed Rodriguez and did a leg sweep. Rodriguez fell
on his face, at which point Duvall placed Rodriguez in handcuffs.
Rodriguez responded to Duvall’s motion to dismiss with excerpts from
Phelps’ deposition. Phelps stated that when they approached the suite, someone
was walking down the hall towards the elevator. That person asked the security
guards, “If there’s anything illegal going on in the room can I be held accountable
for it just because my name is on the room? Because I’m not in the room.” The
security guards then proceeded to the suite, where the door was open. Phelps
knocked and announced “Security” before they entered the suite.
Rodriguez also provided a declaration from Richard Echevarry, the person
who rented the suite. Echevarry stated that he did not give security guards
permission to enter the suite and was not present when the security guards did so.
In his reply to Rodriguez’s response, Duvall included additional deposition
excerpts from Phelps. Phelps stated that although Echevarry had consented for
them to enter the suite, when they got there, “the door was already open. So I
knocked, identified myself as security. I knocked again. I knocked several times.
No one ever came to the door. At that point, Officer Duvall and [I] stepped inside
the door.”4 Then Duvall announced, “H.P.D. Put your hands up.” According to
Phelps, Duvall approached a table that was covered with “a lot of drug
paraphernalia . . . [l]ike little bags of . . . weed and . . . some . . . powdery-looking
substance.” Phelps thought the man at the table had a weapon because he had his
hands under the table and refused to put his hands up when Duvall ordered him to
do so. Duvall then grabbed the man, and the man fought back. The man then fell,
and “when Duvall raised him up, his mouth [was] all bloody.” Phelps also stated
4
Phelps later testified that he did not remember whether “any door was open or closed
when [they] were in there.”
4
that he did not smell anything and did not know what marijuana is “supposed to
smell like.”5
Discussion
In two issues, Rodriguez contends that the trial court erred in dismissing his
claims against Duvall because (1) Duvall did not have consent to enter the suite or
probable cause to believe that evidence of a crime would be found in the suite and
insufficient exigent circumstances existed to justify an immediate search without a
warrant; and (2) a fact question exists as to whether Duvall was acting in his
private or official capacity when he arrested Rodriguez.
Under section 101.106(f) of the Act, the legislature mandated that a
governmental unit—not the government employee—must be sued for a
governmental employee’s work-related tortious conduct. Garza v. Harrison, 574
S.W.3d 389, 394 (Tex. 2019). It provides:
If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and
if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in
the employee’s official capacity only. On the employee’s motion, the
suit against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the
date the motion is filed.
Tex. Civ. Prac. & Rem. Code § 101.106(f).
Section 101.106(f) essentially prevents an employee from being sued at all
5
We note that on appeal, Rodriguez attached entire transcripts of his, Duvall’s, Mays’,
and Phelps’ depositions, which were not attached in their entirety to the relevant motions,
responses, and replies filed below. On appeal, Rodriguez also cites the deposition transcripts
attached to his appellate brief instead of citing the record. For purposes of this appeal, we
consider only the excerpts of deposition transcripts that were filed in the trial court in support of
the motion to dismiss and responsive briefing.
5
for work related torts and instead provides for a suit against the governmental
employer. Garza, 574 S.W.3d at 400. It mandates dismissal when a suit against a
governmental employee is (1) “based on conduct within the general scope of [the]
employee’s employment” and (2) “could have been brought under [the Act] against
the governmental unit.” Id.
Rodriguez did not amend his pleading to dismiss Duvall and name the City
of Houston as a defendant under section 101.106(f). Instead, Rodriguez argued the
statute is inapplicable because Duvall was acting within the scope of his
employment with the hotel, not as a police officer for HPD. The parties do not
dispute that Duvall was an HPD employee at the time of the alleged tort. See id.
The issue on appeal is whether, within the meaning of section 101.106(f), Duvall
acted “within the general scope of [his] employment” as a police officer when,
while off duty, he arrested Rodriguez. See id. According to Rodriguez, Duvall did
not act within the general scope of his employment because he did not have
authority to search the hotel room without a warrant. Alternatively, Rodriguez
argues that there is a fact question as to whether Duvall was acting within the
scope of his employment at the time of the arrest. We review these matters de
novo. See id.
I. Warrantless Detainment and Arrest in Course and Scope of
Duties as Police Officer
In his first issue, Rodriguez contends that Duvall did not have the authority
to detain and arrest Rodriguez without consent or probable cause to enter the suite
or exigent circumstances to justify an arrest. According to Rodriguez, Duvall was
“acting in his personal capacity, and not ‘under the color of the law’” when he
arrested Rodriguez. Duvall counters that the arguments about consent to enter the
room, probable cause, and exigent circumstances are immaterial because the
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detention and arrest were within the course and scope of his duties as a police
officer once he observed Rodriguez purportedly engaging in unlawful activity.
The Supreme Court of Texas has held that officers “retain their status as
peace officers twenty-four hours a day, which means that a police officer’s ‘off-
duty’ status is not a limitation upon the discharge of police authority in the
presence of criminal activity.” Id. at 403. “If an off-duty officer observes a crime,
as a matter of law he becomes an on-duty officer.” Id. When a police officer has
undertaken private employment during off-duty hours, to determine the capacity in
which the officer was acting, courts must ask whether the officer is enforcing
general laws in accordance with a statutory grant of authority. Id. If so, the officer
is acting in the course and scope of employment as a police officer. Id.
We turn to the facts of the Garza case. While working as a courtesy patrol
officer for an apartment complex, an off-duty police officer observed two people
sitting in a car in the apartment complex parking lot. Id. at 394-95. The officer
stated that he saw the person in the driver’s seat putting marijuana into a pill bottle.
Id. at 395. According to the officer, he displayed his police badge and
identification card, identified himself as a police officer, and asked the person to
step out of the car. Id. The person did not comply and instead started his car and
began backing up. Id. The officer drew his weapon and fired two shots through the
side window and discharged additional rounds “in an attempt to stop” the driver.
Id. The driver later died from two gunshot wounds. Id. at 395-96. In concluding
that the officer, Garza, became an on-duty police officer once he observed
someone in possession of marijuana, the high court noted, “[w]hether [the officer]
had a reasonable suspicion that a crime was occurring before observing [a crime]
or . . . chose to effect the arrest [in an improper manner did] not raise a fact issue
on the narrow and objective inquiry.” Id. at 404. The inquiry was “[o]bjectively,
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[whether the officer] was doing his job as a police officer in attempting to [effect
an] arrest . . . for possession of marijuana.” Id.
Duvall similarly stated that he saw Rodriguez handling a “green leafy
substance” that he was “putting . . . on the ground, stomping on[,] or throwing . . .
into empty red Solo . . . cups on the table.” According to Duvall, “due to the smell,
the complaint allegations, [and] past experiences . . . he could confirm . . . from
[his] training and experience, that it was marijuana.” Phelps likewise stated that
Duvall approached a table covered with “a lot of drug paraphernalia . . . [l]ike little
bags of . . . weed and . . . some kind of powdery-looking substance.” Phelps
thought the man had a weapon because he had his hands under the table and
refused to put them up when Duvall ordered him to do so.
We are bound by Garza. Under the supreme court’s reasoning, it did not
matter whether the officer had reasonable suspicion that a crime was occurring
before he witnessed the suspect breaking the law. Id. The relevant point in time
was the moment the officer observed illegal activity. Id. Similarly, it did not matter
whether the arrest was “accomplished in an improper manner.” Id. As the court
noted,
[t]he scope-of-employment inquiry under section 101.106(f) focuses
on whether the employee was doing his job, not the quality of the job
performance. Even if work is performed wrongly or negligently, the
inquiry is satisfied if, when viewed objectively, ‘a connection [exists]
between the employee’s job duties and the alleged tortious conduct.’
Id. at 394. In that case, a connection existed “between the defendant law
enforcement officer’s job responsibilities and the alleged tort because he was
exercising a statutory grant of authority to make a warrantless arrest for a crime
committed in his presence—authority he possessed solely through his
governmental employment.” Id.
8
Following this logic, Duvall immediately became an on-duty police officer
when he purportedly saw Rodriguez attempting to conceal or destroy marijuana.
See id. at 404. In arresting Rodriguez—whether done so in an improper manner—
Duvall was enforcing public laws. See id.; see also Tex. Code Crim. Pro. art.
14.01(b) (“A peace officer may arrest an offender without a warrant for any
offense committed in his presence or within his view.”). That is true even if the
arrest benefitted the hotel and even if Duvall lacked consent or probable cause
before purportedly witnessing illegal activity. See Garza, 574 S.W.3d at 404. Once
Duvall purportedly observed Rodriguez in possession of marijuana, an arrest was
authorized only by virtue of Duvall’s status as a police officer. See id. Duvall’s
state of mind, motives, and competency were irrelevant so long as the conduct was
pursuant to his duties as a police officer. See id. at 401. Accordingly, Duvall was
acting in his official capacity as a matter of law when he arrested Rodriguez. See
id. at 404. We overrule Rodriguez’s first issue.
II. No Fact Issue Regarding Private or Official Capacity
Rodriguez also argues in his second issue that there is a fact issue regarding
whether Duvall was acting in a private or official capacity when he detained and
arrested Rodriguez. We disagree.
Under Garza, if an officer is protecting a private employer’s property,
ejecting trespassers, or enforcing rules and regulations promulgated by the private
employer, a fact question may arise as to whether the officer’s conduct was in a
private or official capacity. Id. at 403. However, when an officer makes an arrest
for illegal activity, he is acting in his official capacity, even if that arrest also
benefits the private employer. See id. at 404. Again, as the supreme court held:
Whether [the officer] looked the part (since he was wearing casual
clothes and shoes), properly identified himself as a police officer, had
9
a reasonable suspicion that a crime was occurring before witnessing
[the person] breaking the law, or placed himself in danger by the
manner he chose to effect the arrest do not raise a fact issue on the
narrow and objective inquiry here. Objectively, [the officer] was
doing his job as a police officer in attempting to [make an] arrest . . .
for possession of marijuana.
Id.
Duvall was doing his job as a police officer when he arrested Rodriguez for
possession of marijuana. See id. It does not matter if the detainment and arrest also
benefitted the hotel. See id. It does not matter if Duvall arrested Rodriguez in an
improper manner. See id. The undisputed facts of this case do not raise a fact issue
on whether Duvall was acting in a private or official capacity when he arrested
Rodriguez. We overrule Rodriguez’s second issue.
Conclusion
As noted in Garza, the facts of the case may be distressing, but the legal
issue is discrete. Id. at 405. Under section 101.106(f), we do not pass judgment on
the officer’s skill or the way he attempted to enforce the law. See id. Our analysis
is limited only to whether the officer was doing the job of a police officer to stop
crime when and where it happens. See id. at 405-06. Duvall was sued in his official
capacity, and he was entitled to be dismissed from the lawsuit because the record
conclusively establishes that he was acting under a valid grant of authority
conferred by virtue of his status as a police officer and activated by the
commission of a crime in his presence. See id. at 406; see also Tex. Code Crim.
Pro. art. 14.01(b). Accordingly, we affirm the trial court’s order dismissing Duvall
from the suit.
10
/s/ Frances Bourliot
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer.
11