Court of Appeals of Texas, Fourth District, San Antonio
Ernesto RIVERA Jr. and Brandon Torres, Appellants
Alissa GARCIA and Jose Reynaldo Mendez Garcia, Appellees
the County Court, Jim Wells County, Texas Trial Court No.
17-05-57235-CV Honorable Michael Ventura Garcia, Judge
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Luz Elena D. Chapa, Justice
PATRICIA O. ALVAREZ, JUSTICE
case stems from the trial court's denial of a motion to
dismiss filed pursuant to section 101.106(f) of the Texas
Civil Practice and Remedies Code. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(f). Appellees
Alissa Garcia and Jose Reynaldo Mendez Garcia filed suit for
defamation, malicious prosecution, and intentional infliction
of emotional distress against Appellant Ernesto Rivera Jr.
and Brandon Torres, both deputies with the Jim Wells County
Sheriff's Office. The deputies appeal alleging their
actions were within the scope of their employment and the
trial court lacked subject matter jurisdiction. We reverse
the trial court's order denying the motion to dismiss and
dismiss the Garcia's suit for lack of subject matter
and Procedural Background
9, 2016, Alissa and Jose Reynaldo Mendez Garcia reported
their 2014 black Toyota 4-Runner was stolen to the Jim Wells
County Sheriff's Department. Alissa also reported the
stolen truck to their insurance carrier. Assistant Chief
Deputy Brandon Torres assigned the investigation of the theft
of the automobile to Sergeant Ernesto Rivera Jr. During his
investigation, Sergeant Rivera accessed a computer software
system, available to the Jim Wells County Sheriff's
Office through the Enterprise Operation Center and Homeland
Security. Sergeant Rivera located several leads for locations
of the vehicle based on the vehicle's license plate.
Sergeant Rivera then interviewed the Garcias. Based on his
investigation, on June 27, 2016, Sergeant Rivera swore out
affidavits against both Alissa and Jose Reynaldo Mendez
Garcia for filing a false police report, and against Alissa
Garcia for insurance fraud. The investigation and affidavits
are the bases of the Garcias' malicious prosecution
Sheriff's Office was subsequently contacted by a Corpus
Christi reporter. Assistant Chief Deputy Torres provided an
interview with the reporter which is the basis of the
Garcias' defamation claim. The intentional infliction of
emotional distress claim is based on a combination of both
the defamation and the malicious prosecution claims.
30, 2017, the Garcias filed suit for defamation, malicious
prosecution, and intentional infliction of emotional distress
against Jim Wells County Deputies Brandon Torres and Ernesto
Rivera Jr. The Garcias simultaneously filed suit against
Coalition Against Insurance Fraud for defamation.
28, 2017, the deputies filed a motion to dismiss for lack of
subject matter jurisdiction pursuant to section 101.106 of
the Texas Civil Practice and Remedies Code. See id.
November 29, 2017, the trial court heard oral arguments and
testimony from the 79th Judicial District Attorney and the
Jim Wells County Sheriff; and, on October 31, 2018, the trial
court denied the motion to dismiss.
deputies filed this interlocutory appeal.
a motion to dismiss filed by an employee pursuant to section
101.106(f) challenges the trial court's subject-matter
jurisdiction, an appellate court conducts a de novo review.
Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex.
2007). Likewise, our determination of the matters involves
statutory construction, which is also reviewed under a de
novo standard. See ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (per curiam);
Railroad Comm'n v. Tex. Citizens for a Safe Future
& Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). We
apply the plain meaning of the text, absent a different
definition provided by the legislature, unless the plain
meaning leads to absurd results. Marks v. St. Luke's
Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010).
of the Parties
deputies contend the uncontroverted evidence establishes the
deputies were within the scope of their employment to
investigate the reports, arrest the Garcias, and answer the
medias' questions; thus, the trial court erred in denying
their motion to dismiss pursuant to section 101.106(f) of the
Texas Civil Practice and Remedies Code. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(f).
Garcias contend the deputies' affidavits were conclusory
and contained inadmissible hearsay, the evidence contested
that the deputies were in the course and scope of their
employment, and the deputies were sued in their individual
under the Texas Tort Claims Act
immunity and governmental immunity protect the State and its
political subdivisions, respectively, from lawsuits and
liability. See Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655 (Tex. 2008). The Texas Tort
Claims Act provides a limited waiver of that immunity for
certain suits against governmental entities. Id.;
see also Tex. Civ. Prac. & Rem. Code Ann. §
101.021. After the Texas Tort Claims Act's enactment,
"plaintiffs often sought to avoid the Act's damages
cap or other strictures by suing governmental employees,
since claims against [the employees] were not always subject
to the Act." Garcia, 253 S.W.3d at 656.
101.106(f) of the Tort Claims Act requires the trial court to
dismiss a cause of action against a protected employee when
the employee's conduct ...