Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robbins v. Lostracco

Court of Appeals of Texas, Twelfth District, Tyler

March 29, 2019

PAUL A. ROBBINS AND THE LAW OFFICE OF PAUL A. ROBBINS, APPELLANTS
v.
NICOLE D. LOSTRACCO, IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR NACOGDOCHES COUNTY, APPELLEE

          APPEAL FROM THE 145TH JUDICIAL DISTRICT COURT NACOGDOCHES COUNTY, TEXAS (TR.CT.NO. C1732788)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE JUSTICE.

         Paul A. Robbins and The Law Office of Paul A. Robbins appeals the trial court's judgment granting Nacogdoches County's plea to the jurisdiction.[1] Robbins raises three appellate issues for our consideration. We modify and affirm.

         Background

         The Nacogdoches County District Attorney's Office (NCDA) and the Nacogdoches County Sheriff's Office (NCSO) have an interlocal agreement governing seized and forfeited property or proceeds from the seizure and forfeiture of property under Chapter 59 of the Texas Code of Criminal Procedure. Pursuant to the agreement, the NCDA receives fifty percent of all seized property and proceeds from contested forfeiture cases.

         In September 2014, Nicole D. Lostracco, the elected District Attorney, hired Robbins, a licensed attorney, to prosecute civil forfeiture cases on a contingency fee basis. Lostracco memorialized the terms of the contract in an email, which stated that Robbins would receive (1) one hundred percent of the NCDA's fifty percent if the amount forfeited was valued under $5, 000; (2) two thirds of the NCDA's fifty percent if the amount forfeited was more than $5, 000 but less than $10, 000; and (3) fifty percent of the NCDA's fifty percent if the amount forfeited was more than $10, 000. Thereafter, Robbins was sworn in as a special district attorney and began prosecuting forfeiture cases. At the conclusion of each case, Robbins submitted an invoice and was paid in accordance with the contract.

         In late 2015, the NCSO seized approximately $1, 150, 650 after an investigation. In accordance with the contract, Robbins successfully prosecuted the forfeiture. Thereafter, Lostracco and Jason Bridges, the Nacogdoches County Sheriff, met with Robbins and informed him they could not pay his fee for the forfeiture because doing so would cause unfavorable publicity. After the meeting, the parties agreed to postpone discussion on the dispute until after the primary election on March 1, 2016. On March 2, 2016, Robbins submitted an invoice for $287, 662.50 for his work on the seizure. The Nacogdoches County Commissioner's Court refused to pay the invoice, and in May 2017, Robbins sued Lostracco, in her official capacity as District Attorney, for breach of contract.[2]

         In June 2017, the County filed a plea to the jurisdiction claiming governmental immunity from Robbins' claims, and maintaining that its immunity has not been waived. In September, Robbins requested jurisdictional discovery, which the trial court limited to requests for admissions. Robbins requested expanded jurisdictional discovery, but in January 2018, the trial court granted the County's plea to the jurisdiction and dismissed Robbin's suit with prejudice. This appeal followed.

         Plea to the Jurisdiction

         In Robbins's first issue, he argues that the trial court erred in granting the County's plea to the jurisdiction. Robbins argues that Lostracco's egregious conduct waived the County's immunity.

         Standard of Review and Applicable Law

         A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009). When reviewing whether a plea to the jurisdiction was properly granted, we first look to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of the plaintiff and looking to the pleader's intent. Id. If the pleadings neither affirmatively demonstrate nor negate jurisdiction, the plaintiff should be given an opportunity to amend the pleadings. Id. at 622. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, even when those facts may implicate the merits of the cause of action. Id. (quoting Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)). If the evidence creates a fact issue as to jurisdiction, then it is for the fact-finder to decide and the plea should be denied. See Kirwan, 298 S.W.3d at 622. However, if the relevant evidence is undisputed or fails to raise a fact question on jurisdiction, the trial court rules on the plea to the jurisdiction as a matter of law. Id. In considering this evidence, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id.

         The doctrine of sovereign immunity provides that "no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent." Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). That same immunity extends to persons sued in their official capacities as employees of the governmental unit, because a suit against a government official in her official capacity is just another way of pleading a suit against a governmental entity of which the official is an agent. See City of Hempstead v. Kmiec,902 S.W.2d 118, 122 (Tex. App.-Houston [1st Dist.] 1995, no writ). "Simply described, sovereign immunity generally shields our state government's 'improvident acts'-however improvident, harsh, unjust, or infuriatingly boneheaded these acts may ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.