Myles Hopkins v. W. A. (\"Bill\") Strickland ( 2013 )

Opinion issued March 21, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00315-CV
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MYLES HOPKINS, APPELLANT
V.
W.A. STRICKLAND, APPELLEE
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 64942
MEMORANDUM OPINION
Myles Hopkins, a former police chief of Liverpool, Texas, sued Bill
Strickland, the mayor of Liverpool, for slander and malicious prosecution.
Strickland responded with a plea to the jurisdiction, maintaining that he was
immune from suit against him individually under section 101.106(f) of the Texas
Tort Claims Act, among other common law assertions of immunity. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). The trial court granted the
plea to the jurisdiction. On appeal, Hopkins contends that section 101.106(f) is
inapplicable, because he sued Strickland in his individual capacity for acts outside
the scope of Strickland’s official duties as mayor. We conclude that section
101.106(f) bars Hopkins’s claims against Strickland and therefore affirm.
Background
After Strickland was elected mayor of Liverpool, Hopkins resigned from his
position as the Liverpool police chief. Hopkins then sought employment with the
nearby city of Danbury. The mayor of Danbury, Bill Turnipseed, spoke to
Strickland on the phone about Hopkins as a potential candidate for chief of police
in Danbury. After their conversation, the two mayors agreed to meet to further
discuss Hopkins. At their meeting, Strickland provided Liverpool’s police budgets
for two years while Hopkins was the chief of police to Turnipseed. He also
answered Turnipseed’s questions about Hopkins’s performance. Hopkins alleges
that during these conversations, Strickland defamed him by telling Turnipseed that
Hopkins was dishonest, not a proficient employee, and not capable of performing
the job of police chief.
Around the same time, the Liverpool city council authorized Strickland to
collect funds that had been improperly paid to another former Liverpool employee.
Strickland met with a representative of the Brazoria County District Attorney’s
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Office to discuss collecting the funds. Hopkins alleges that Strickland also
discussed with the representative the possibility of pursuing criminal charges
against Hopkins for misappropriating city funds. Eventually, the City of Danbury
hired Hopkins as its chief of police. The district attorney’s office never prosecuted
Hopkins.
Discussion
Standard of Review
We review the trial court’s ruling on a plea to the jurisdiction de novo. State
v. Holland, 221 S.W.3d 639, 642 (Tex. 2007) (citing Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)). The plaintiff must
allege facts that affirmatively establish the trial court’s subject matter jurisdiction.
Id.; City of Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.]
2008, no pet.). In determining whether the plaintiff has satisfied this burden, we
construe the pleadings liberally in the plaintiff’s favor and deny the plea if the
plaintiff has alleged facts affirmatively demonstrating jurisdiction to hear the case.
Miranda, 133 S.W.3d at 226–27; Smith v. Galveston Cnty., 326 S.W.3d 695, 698
(Tex. App.—Houston [1st Dist.] 2010, no pet.).
If the plea to the jurisdiction challenges the existence of jurisdictional facts,
the trial court must consider relevant evidence submitted by the parties. Miranda,
133 S.W.3d at 227. When the relevant evidence is undisputed or fails to raise a fact
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question on the jurisdictional issue, the trial court rules on the plea to the
jurisdiction as a matter of law. Id. at 228. After a defendant asserts, and supports
with evidence, that the court lacks subject matter jurisdiction, the plaintiff must
show the existence of a disputed fact issue in order to avoid dismissal for want of
jurisdiction. Id. at 227–28. The standard of review for such jurisdictional disputes
“generally mirrors that of a [traditional] summary judgment.” Id. at 228. On the
other hand, if the relevant evidence is undisputed or fails to raise a fact question on
the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a
matter of law. Id. In reviewing the evidence presented, we take as true all evidence
favorable to the plaintiff, indulging every reasonable inference in the plaintiff’s
favor. Id.
Analysis
Section 101.106(f) of the Tort Claims Act 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 ANN. § 101.106(f). Thus, a defendant is entitled to
dismissal under section 101.106(f) upon proof that the plaintiff’s suit (1) was based
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on conduct within the general scope of the defendant’s employment with a
governmental unit and (2) could have been brought against the government unit
under the Tort Claims Act. Id.; see also Franka v. Velasquez, 332 S.W.3d 367, 369
(Tex. 2011); Univ. of Tex. Health Sci. Ctr. v. Bailey, 332 S.W.3d 395, 401 (Tex.
2011). The first component encompasses two inquiries: whether the individual
defendant was an employee of a governmental unit and whether the acts alleged
fall within the scope of that employment at the relevant time. See Anderson v.
Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
The statute strongly favors dismissal of governmental employees. Id.; Waxahachie
Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005, pet.
denied).
Scope of Employment
It is undisputed that Liverpool, a governmental unit, employed Strickland as
mayor at the relevant time. Accordingly, we turn to examine whether Strickland
was acting within the scope of his general employment when he committed the
alleged tortious acts—that is, when he made the defamatory statements to
Turnipseed and consulted with the district attorney’s office about prosecuting
Hopkins.
The Tort Claims Act defines “scope of employment” as “the performance
for a governmental unit of the duties of an employee’s office or employment and
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includes being in and about the performance of a task lawfully assigned to an
employee by competent authority.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.001(5). “An official acts within the scope of her authority if she is
discharging the duties generally assigned to her.” City of Lancaster v. Chambers,
883 S.W.2d 650, 658 (Tex. 1994). This is true even if the employee, in discharging
her duties, acts in part to serve the employee’s or a third party’s interest. Anderson,
365 S.W.3d at 125–26.
The mayor is the chief executive officer of a municipality and has the duty
to supervise subordinate municipal officers. TEX. LOC. GOV’T CODE ANN.
§ 22.042(a) & (b) (West 2008); see also City of San Antonio v. Robert Thompson &
Co., 30 S.W.2d 339, 341 (Tex. App.—San Antonio 1930, writ dism’d).
Additionally, the mayor “shall inspect the conduct of each subordinate municipal
officer and shall cause any negligence, carelessness, or other violation of duty to be
prosecuted and punished.” TEX. LOC. GOV’T CODE ANN. § 22.042(b).
In support of his plea to the jurisdiction, Strickland provided an affidavit
averring that all of his actions regarding this suit were within the scope of his
employment as mayor of Liverpool. He averred that when he spoke to Turnipseed
about Hopkins, he was responding to a routine employment verification request
and that responding to such a request was within the scope of his duties as mayor.
Hopkins presented no evidence to dispute this characterization of the mayor’s job
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description. Instead, Hopkins contends that slandering a former employee is not
within the scope of the mayor’s duties. Yet, an act may still be within the scope of
the employee’s duties even if the specific act that forms the basis of the civil suit
was wrongly or negligently performed, so long as the action was one related to the
performance of his job. See Chambers, 883 S.W.2d at 658 (holding police officers
were acting within the scope of their authority in pursuing a suspect even if driving
negligently to do so); Tex. Dep’t. of Pub. Safety v. Tanner, 928 S.W.2d 731, 735
(Tex.App.—San Antonio 1996, no writ) (“Even if a specific action is wrong or
negligent, an officer acts within the scope of his authority when performing the
general duties assigned.”). We conclude that Strickland acted within the general
scope of his duties in talking to Turnipseed when he made the statements to
Turnipseed. See Chambers, 883 S.W.2d at 658; Miranda, 133 S.W.3d at 228.
Strickland further averred that he consulted with the district attorney’s office
in the scope of his employment in an attempt to collect funds at the request of the
city council. Strickland’s duties include the prosecution of subordinates for “any
negligence, carelessness, or other violation of duty.” See TEX. LOC. GOV’T CODE
ANN. § 22.042(b). Accordingly, consulting with the district attorney’s office about
a possible misappropriation of funds by a former Liverpool police chief, as alleged
by Hopkins, falls within Strickland’s duties as mayor.
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Hopkins responds that in both talking to Turnipseed and consulting with the
district attorney’s office, personal animus motivated Strickland. Yet, Strickland
was completing tasks within his general duties as mayor, and though he may have
acted in part to serve his own interests, that does not take the acts outside the scope
of his employment. See Anderson, 365 S.W.3d at 125–126. We hold that Hopkins
has alleged no acts against Strickland that fall outside the general scope of his
employment. See Chambers, 883 S.W.2d at 658.
Could Have Been Brought Under the Tort Claims Act
Given that the pleadings allege acts within the scope of Strickland’s
employment, Hopkins’s suit could have been brought under the Tort Claims Act
against Liverpool. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka,
332 S.W.3d at 375. Hopkins’s causes of action are both intentional tort claims for
which immunity is not waived. See City of Hempstead v. Kmiec, 902 S.W.2d 118,
122 (Tex. App.—Houston [1st Dist.] 1995, no writ). But all common-law tort
theories alleged against a governmental unit, even if not waived under the Tort
Claims Act, are assumed to be “under the Tort Claims Act,” because it is the Act
that delineates governmental tort liability. Franka, 332 S.W.3d at 375. We hold
that Hopkins’s suit against Strickland, while Strickland acted within the general
scope of his employment, “could have been brought under the Tort Claims Act”
for purposes of section 101.106(f). See Franka, 332 S.W.3d at 375; City of El Paso
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v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009); Brown v. Ke-Ping Xie, 260 S.W.3d
118, 122–23 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that
defamation claims against government employees were “under the Tort Claims
Act” for purposes of section 101.106).
Conclusion
We hold that the trial court properly granted Strickland’s plea to the
jurisdiction pursuant to section 101.106(f) of the Tort Claims Act. We therefore
affirm the order of the trial court.
Jane Bland
Justice
Panel consists of Justice Jennings, Bland, and Massengale.
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