United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
Brown spent almost ten years on death row. His conviction was
finally set aside after exculpatory evidence hidden from the
defense for years was finally brought to light. The issue now
is how to compensate for that loss of time and of rights.
Brown has sued the City of Houston, Harris County, and Kim
Ogg, in her official capacity as the current Harris County
District Attorney, among others, for damages from his
incarceration. Harris County has moved to dismiss Brown's
claims against Kim Ogg because they duplicate Brown's
claims against Harris County. After carefully reviewing the
applicable law and the parties' arguments, the court
grants Harris County's motion to dismiss those claims
against Ogg. The reasons are explained below.
court's prior opinion described the background, which is
only briefly summarized here, based on Brown's complaint
allegations and the documents in the public record from his
trial, appeal, and habeas proceedings. As noted, after over
12 years in prison, including almost 10 on death row, the
Texas Court of Criminal Appeals vacated Brown's
conviction because of Brady v.
Maryland violations. (Docket Entry No. 1 at
¶¶ 142, 147). Brown was released after the District
Attorney declined to reprosecute. (Id. at ¶
144). In June 2017, Alfred Brown sued the City of Houston,
Houston Police Department Detective Breck McDaniel, Houston
Police Department Officers Ted Bloyd and D.L. Robertson,
Harris County, Harris County Assistant District Attorney
Daniel Rizzo, and Kim Ogg, in her official capacity as the
current Harris County District Attorney, seeking damages
under § 1983. (Docket Entry No. 1). In December 2017,
the court dismissed some of Brown's claims against Harris
County, allowing his municipal liability claim to proceed.
(Docket Entry No. 39). The court, denying a motion for
reconsideration, found that the District Attorney had acted
as an agent of Harris County, rather than of the State of
Texas, in prosecuting Brown. (Docket Entry No. 56 at 10).
Harris County then moved to dismiss the official-capacity
claims against Kim Ogg. (Docket Entry No. 67). The court
stayed the case pending the outcome of the County-initiated
investigation into Brown's actual innocence. (Docket
Entry No. 72).
2019, that investigation produced a finding that Brown met
the legal definition of actual innocence. (Docket Entry No.
76-1 at 90). The court lifted the stay, and Harris County
again moved to dismiss the official-capacity claims against
Ogg. (Docket Entry Nos. 87, 93). Brown responded; the County
replied; and the court ordered additional briefs on Kim
Ogg's dismissal or retention. (Docket Entry Nos. 98, 99,
100, 101, 102).
The Applicable Legal Standards
Rule 12(b)(6) 
12(b)(6) allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). If the allegations in the
complaint, even if taken as true, do not entitle the
plaintiff to relief, the complaint should be dismissed.
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (citing Twombly, 550 U.S. at 558).
claims “generally represent only another way of
pleading an action against an entity of which an officer is
an agent.” Kentucky v. Graham, 473 U.S. 159,
165 (1985) (quoting Monell v. New York City Dep't of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). The claim
is treated as one against the entity, which is the real
party-in-interest. Graham, 473 U.S. at 166. When a
government-official defendant is sued in her official
capacity, and the governmental entity is also sued,
“[t]he official-capacity claims and the claims against
the governmental entity essentially merge.” Turner
v. Houma Mun. Fire & Police Civil Serv. Bd., 229
F.3d 478, 485 (5th Cir. 2000). “Thus, while an award of
damages against an official in his personal capacity can be
executed only against the official's personal assets, a
plaintiff seeking to recover on a damages judgment in an
official-capacity suit must look to the government entity
itself.” Graham, 473 U.S. at 166.
County seeks to dismiss the official-capacity claims against
Ogg as redundant and duplicative, arguing that the County is
the only real party-in-interest to the claims. (Docket Entry No.
93 at 4). Brown counters that “[c]laims against an
individual in her official capacity routinely proceed
alongside claims against the entity employing her, ”
and that the “official capacity claim against Defendant
Ogg can and should proceed as a claim against the office of
the Harris County District Attorney, in addition to the claim
against Defendant Harris County.”(Docket Entry No.
98 at 8, 10-11).
law determines a governmental entity's capacity to sue or
be sued. Fed.R.Civ.P. 17(b). Under Texas law, counties are
organized as corporate entities and are capable of being
sued, Tex. Loc. Gov't Code Ann. § 71.001 (West
2019), but agencies and subdivisions within a county are
generally not entities capable of suit. See Darby v.
Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir.
1991) (“Unless the true political entity has taken
explicit steps to grant the servient agency with jural
authority, the agency cannot engage in any litigation except
in concert with the government itself.”).
Texas law, offices within counties are not legal entities
capable of being sued. In Jacobs v. Port Neches Police
Department, 915 F.Supp. 842, 843 (E.D. Tex. 1996), the
plaintiff sued a county sheriff's department and the
county's district attorney's office for allegedly
violating the plaintiff's civil rights. The district
court dismissed the claims against both the sheriff's and
the district attorney's offices, finding that neither was
a legal entity capable of being sued under Texas law.
Id. at 844; accord Thomas v. Harris Cty.
Sheriff's Dep't, Civ. A. No. H-18-1800, 2019 WL
1201984, at *2 (S.D. Tex. March 14, 2019) (collecting cases).
Similarly, in Barrie v. Nueces County District
Attorney's Office, 753 Fed.Appx. 260, 262 (5th Cir.
2018), the Fifth Circuit affirmed the district court's
dismissal of a claim against the Nueces County District
Attorney's Office. ...