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Robinson v. Scott

Court of Appeals of Texas, Tenth District

February 28, 2018

ALVIE ROBINSON, Appellant
v.
ALICIA SCOTT AND BRANDEN MULLENS, Appellees

         From the 278th District Court Walker County, Texas Trial Court No. 25, 737

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          TOM GRAY Chief Justice

         Alvie Robinson is a prison inmate. He sued Texas Department of Criminal Justice Correctional Officers Alicia Scott and Branden Mullens (officers) in their official and individual capacities under the Texas Theft Liability Act for damages arising from the alleged theft and conversion of his personal property when he was moved from one prison wing to another. The officers filed a plea to the jurisdiction, and after a hearing, the trial court granted the plea to the jurisdiction. Because the officers were entitled to raise sovereign immunity, because Robinson's claims were subject to the election of remedies provision of the Texas Tort Claims Act, and because an earlier ruling allegedly denying the motion by a different trial court judge did not bind a subsequent trial court judge under the doctrine of stare decisis to dismiss the officers' plea to the jurisdiction, the trial court's judgment is affirmed.

         Official Immunity

         Robinson alleged in his petition the officers were charged with inventorying his property when he arrived at the new prison wing and committed theft and conversion when the property went missing.

         In his first issue, Robinson complains that the trial court erred in granting the officers' plea to the jurisdiction because the officers were not entitled to official immunity. Specifically, he asserts the officers' acts of inventorying his property were ministerial and thus, not subject to official immunity. But the officers did not claim official immunity in their plea to the jurisdiction. They claimed sovereign immunity. Robinson, however, contends that because he did not name the State as a defendant and only the State is entitled to sovereign immunity, the officers raised only a claim of official immunity. Robinson is incorrect.

         Generally, sovereign immunity bars suits against the State and its entities, and this immunity remains intact unless surrendered in express and unequivocal terms by the statute's clear and unambiguous waiver.[1] Tex. Gov't Code Ann. § 311.034 (West 2013); Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012). A suit against a government employee in his official capacity is a suit against his government employer; therefore, 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). Robinson sued the officers in their official capacities; thus, they are entitled to raise sovereign immunity, as they did. They did not raise the affirmative defense of official immunity.

         Accordingly, Robinson's first issue is overruled.

         Election of Remedies

         Next, Robinson asserts that his claims were not subject to the Texas Tort Claims Act's election of remedies provision, specifically section 101.106(f), because he alleged claims under the Texas Theft Liability Act, and theft and conversion are not intentional torts.[2]

         A tort is a civil wrong for which a remedy may be obtained, usually in the form of damages. Black's Law Dictionary 1496 (7th ed. 1999). Conversion and theft are torts. See Restatement (Second) of Torts, § 222A 1979); Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981) (conversion); City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 361 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (conversion-intentional tort); Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex. App.-Houston [14th Dist.] 2005, no pet.).

         Section 101.106(f) protects employees of governmental units from tort suits against them in their individual capacities that could have been brought under the TTCA against the governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (West 2011). A tort claim may be "brought under" the TTCA regardless of whether the TTCA waives immunity for that claim. Tex. Adjutant General's Office v. Ngakoue, 408 S.W.3d 350, 356 n.5 (Tex. 2013); Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011). However, claims brought against the government pursuant to statutory waivers of immunity that exist apart from the TTCA are not "brought under" the TTCA. Ngakoue, 408 S.W.3d at 356 n.5; Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).

         Robinson alleged Scott and Mullins failed to complete their inventories of Robinson's property which ultimately resulted in him being deprived of his personal property. These actions or inactions, he contended, amounted to "theft and/or conversion" in violation of the Texas Theft Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. ยงยง 134.001-.005 (West 2011). However, the TTLA does not waive sovereign immunity. Thus, Robinson tort claims ...


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