Court of Appeals of Texas, Fourth District, San Antonio
John M. DONOHUE, Appellant
CITY OF BOERNE CHIEF OF POLICE JAMES KOEHLER, Officer Pablo Morales and Martha L. Donohue, Appellees
the County Court at Law, Kendall County, Texas Trial Court
No. 15-003-CCL Honorable William R. Palmer Jr., Judge
Sitting: Marialyn Barnard, Justice Patricia O. Alvarez,
Justice Irene Rios, Justice
Donohue challenges the trial court's judgment granting
the pleas to the jurisdiction filed by the City of
Boerne's Police Chief James Koehler and Police Officer
Pablo Morales. Donohue also challenges the trial court's
judgment granting Martha Donohue's plea to the
jurisdiction rendered in the same proceeding. We affirm the
trial court's judgment granting Chief Koehler and Officer
Morales's plea to the jurisdiction and reverse and remand
the trial court's judgment granting Martha Donohue's
plea to the jurisdiction.
the underlying suit arose from events surrounding
Donohue's arrest for public intoxication on August 9,
2013 by Boerne Police Officer Morales. Officer Pablo Morales first encountered
Donohue at a Boerne hospital where Donohue had been brought
in by Bandera County EMS and was being treated for cuts and
bruises to his arms. The hospital staff called Boerne Police
Department for assistance because Donohue was being
uncooperative in his treatment. After Officer Morales
arrived, Donohue refused care at the hospital and requested a
ride to a local hotel. Officer Morales provided a courtesy
ride to a local hotel, waited until Donohue checked in and
then instructed Donohue to stay in his room.
alleges he needed to find something to eat. The hotel staff
would not let him charge food to his room, so he and the
hotel staff called 9-1-1. After growing tired of waiting for
police to arrive, Donohue contends he started to walk to find
some food, at which time Officer Morales arrived and became
angry with him for not staying in his room as instructed.
Officer Morales then decided to arrest him for 9-1-1 abuse
and then changed the charge to public intoxication. Donohue
alleges that during the arrest, Officer Morales grabbed his
forearms and wrists and while forcefully placing the
handcuffs on his wrists, caused his skin to tear and bleed.
to Martha Donohue, Donohue's ex-wife, Donohue asserts
Officer Morales was aware of a protective order issued
against Donohue which gave the false impression Donohue had
"violent tendencies" and which caused Officer
Morales to respond as he did. Donohue alleged the information
about his violent tendencies was false, and Martha Donohue
and Denise Martinezhad conspired to
make these false allegations against him in the protective
underlying action, John M. Donohue filed suit against
numerous defendants, all in their individual capacities:
Boerne Chief of Police James Koehler, Boerne Police Officer Pablo Morales,
Bandera County Sheriff Sergeant Jose Hernandez, Bandera
County Sheriff Deputy Matt Krueger, Bandera County Sheriff
Deputy Birdie Tyler, his ex-wife Martha L. Donohue and Denise
Martinez. In his petition, Donohue characterized his claims
against Chief Koehler and Officer Morales as claims brought
under the Texas Penal Code for aggravated assault with malice
and gross negligence, unlawful restraint with malice and
gross negligence and abuse of office and official oppression.
Donohue also asserted claims based on Chief Koehler and
Officer Morales's alleged violations of his rights under
the Texas Constitution.
August 28, 2015, and September 15, 2015, Donohue filed
supplements to his petition adding Martha Donohue as a
defendant. In his action against Martha Donohue, Donohue
sought monetary damages "for criminal acts as described
and defined under the Penal Code" of aggravated assault,
deadly conduct, and criminal conspiracy. Donohue also alleged
the civil causes of action of libel, defamation and
intentional infliction of emotional distress.
Koehler and Officer Morales both filed a plea to the
jurisdiction, moving to dismiss the claims asserted against
them on the same two bases: (1) they are entitled to official
immunity from suit; and (2) they were acting in the course
and scope of their employment, and thus, the claims may only
be asserted against the Boerne Police Department pursuant to
the Texas Tort Claims Act (TTCA) sections 101.106(e) and
101.106(f). On September 10, 2015, the trial court granted
Chief Koehler and Officer Morales's pleas to the
jurisdiction, dismissing all of Donohue's claims against
these two parties. In the same order, the trial court also
severed the claims against Chief Koehler and Officer Morales.
October 2, 2015, the trial court granted Sergeant Hernandez,
Deputy Krueger, Deputy Taylor and Denise Martinez's plea
to the jurisdiction and dismissed with prejudice the claims
against these defendants. On November 1, 2016, Donohue mailed
a notice of appeal of the trial court's granting of Chief
Koehler and Officer Morales's plea to the jurisdiction
and Sergeant Hernandez, Deputy Krueger and Deputy
Taylor's plea to the jurisdiction.
Martha Donohue filed an answer to Donohue's amended
petition adding her to the lawsuit, as well as a motion to
transfer venue and a plea to the jurisdiction. Martha
Donohue's plea to the jurisdiction challenged the trial
court's subject matter jurisdiction, asserting: (1)
Donohue's suit presented no justiciable issue because her
actions in disseminating the protective order information
were statutorily required by the Texas Family Code, and (2)
Donohue's claims were preempted by section 85.042 of the
Texas Family Code, which governs the reporting of protective
orders to law enforcement.
November 20, 2015, the trial court signed another order
stating that the pleas to the jurisdiction filed by all of
the named defendants were "upheld", and the trial
court dismissed the cause "in its entirety".
appeals from the judgments granting the four pleas to the
jurisdiction proceeded separately in two appeals. This appeal
pertains only to Donohue's challenge of the trial
court's granting of Chief Koehler and Officer
Morales's plea to the jurisdiction as well as
Donohue's challenge of the trial court's granting of
Martha Donohue's plea to the jurisdiction.
on April 18, 2016, Donohue filed a notice of restricted
appeal in this appeal naming as appellees Chief Koehler,
Officer Morales and Mary Donohue.
Chief Koehler and Officer Morales's Challenge to
this Court's Jurisdiction
their appellate brief, Chief Koehler and Officer Morales
challenge this Court's jurisdiction to determine the
substantive merits of this appeal. Beginning with the
assertion that this is a restricted appeal, Chief Koehler and
Officer Morales contend Donohue fails to satisfy three of the
four requisite elements to be entitled to a restricted
appeal, and for this reason, this Court lacks jurisdiction.
Court has already determined that this appeal is a regular,
not restricted appeal, and that Donohue's appeal is
timely. On May 24, 2016, this Court issued an order stating,
Donohue mailed a notice of appeal on November 1, 2015,
identifying Chief Koehler and Officer Morales as appellees
and also indicating his desire to appeal the October 2, 2015
dismissal. On December 18, 2015, Donohue mailed a motion
expressly requesting that an appeal proceed against City of
Boerne Chief of Police James Koehler, Officer Pablo Morales,
and Martha L. Donohue. On April 1, 2016, Donohue filed a
notice of restricted appeal against these three appellees.
The record has been filed. Having reviewed the clerk's
record, we conclude that Donohue's November 1, 2015 and
December 18, 2015 filings were timely and sufficient to
effect an appeal against these appellees. See Tex.
R. App. P. 26.1(a), 26.3; Verburgt v. Dorner, 959
S.W.2d 615 (1997). We therefore order this
appeal to proceed as a timely, regular appeal against James
Koehler in his capacity as Chief of Police of the City of
Boerne, Officer Pablo Morales, and Martha L. Donohue.
to this order, even though Donohue filed a notice of
restricted appeal on April 18, 2016, this notice was
inconsequential. Donohue's notice of appeal filed on
November 5, 2016 was ...