Court of Appeals of Texas, Twelfth District, Tyler
PAUL A. ROBBINS AND THE LAW OFFICE OF PAUL A. ROBBINS, APPELLANTS
NICOLE D. LOSTRACCO, IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR NACOGDOCHES COUNTY, APPELLEE
FROM THE 145TH JUDICIAL DISTRICT COURT NACOGDOCHES COUNTY,
TEXAS (TR.CT.NO. C1732788)
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Robbins and The Law Office of Paul A. Robbins appeals the
trial court's judgment granting Nacogdoches County's
plea to the jurisdiction. Robbins raises three appellate issues
for our consideration. We modify and affirm.
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.
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.
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
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.
to the Jurisdiction
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.
of Review and Applicable Law
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
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 ...