the 278th District Court Walker County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY Chief Justice
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.
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
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.
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. 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.
Robinson's first issue is overruled.
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.
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.).
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).
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. §§ 134.001-.005 (West 2011). However, the
TTLA does not waive sovereign immunity. Thus, Robinson tort