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Bogan v. Denton County District Attorney

Court of Appeals of Texas, Second District, Fort Worth

December 31, 2019

Patricia Ann Bogan, Appellant
Denton County District Attorney, Denton County Sheriff's Department, City of Denton Police Department, and City of Denton Mayor's Office, Appellees

          On Appeal from the 431st District Court Denton County, Texas Trial Court No. 18-3417-431

          Before Sudderth, C.J.; Womack and Wallach, JJ.


          Mike Wallach Justice.

         Patricia Ann Bogan appeals from the trial court's grant of the pleas to the jurisdiction filed by Appellees the Denton County District Attorney (the District Attorney), the Denton County Sheriff's Department (the Sheriff), the City of Denton Police Department (the Police), and the City of Denton Mayor's Office (the Mayor) (collectively Appellees). Because Bogan does not challenge the grounds on which the trial court granted the pleas, we affirm.


         In her "3rd Amended Supplemental Petition, Request for Injunction, Request for Admissions, Request for Disclosure," Bogan's main complaint appeared to be that she had been subjected to electronic surveillance for decades, beginning in the early 1990s and continuing through at least April 2018. She did not make clear who was responsible for the surveillance. Bogan alleged that in June 1990, "after leaving Moore Business Forms Denton Texas[1] after the situation escalated with the [manager and the supervisor] regarding the two of them not wanting [her] to have the job," she began "experiencing problems with libel on the job, with Electronic Surveillance during and after leaving Moore." She stated that she had been told that the spouse of Denton police officer Roger White "wanted to have the job." She alleged a number of complaints about former coworkers, neighbors, a realtor, and a jailer with the Denton Sheriff's department who she alleged once "ran [her] down in the streets." She stated that she filed her complaint "[d]ue to the nature of the ongoing problem with the laser (coherent lights) and the attacks from the laser with excessive radiation," which she alleged were causing her various health issues. It is not clear from her petition what the laser is or who is responsible for it. She made other allegations in her petition that are unclear and not clearly connected to actions of Appellees. Under a section labeled "Cause of Action," Bogan alleged personal injury resulting from electronic and drone surveillance and "[o]n the job harassment with [a] laser." In one sentence, she stated that sovereign immunity had been waived under Section 101.025 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (providing that "[s]overeign immunity to suit is waived and abolished to the extent of liability created by this chapter").

         Each defendant filed an answer, special exceptions, affirmative defenses, and a plea to the jurisdiction. The District Attorney's plea to the jurisdiction asserted that Bogan had failed to "identify the state statutory basis upon which [she] bases her claims" and "does not explain how the claim escapes governmental immunity from suit." It pointed out that to invoke a trial court's jurisdiction over a claim, a claimant "must plead a legal and factual cause of action within the expressed terms of the Texas Tort Claims Act or other statutory waiver of immunity" and argued that Bogan had failed to allege a valid cause of action under Texas Civil Practice and Remedies Code Section 101.021(2), to "specifically reference the statutory waiver of governmental immunity from suit," and to "identify the recoverable damages for which immunity is waived." See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (providing that a governmental unit is liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law"). The Sheriff and the City of Denton (the City), on behalf of the Mayor and the Police, filed pleas that were essentially identical to the District Attorney's. The Sheriff further asserted that it is a non-jural entity that lacks the capacity to be sued, and the City made the same assertion on behalf of the Mayor and the Police. While Bogan filed her third amended supplemental petition after Appellees filed their pleas to the jurisdiction, she did not file a separate answer to the pleas.

         After a hearing, the trial court granted each plea to the jurisdiction in separate orders that dismissed Bogan's claims with prejudice. Bogan now appeals.


         On appeal, Bogan brings two issues: (1) "[th]e appellee/defendant continues to refer to the original petition and not the 3rd amended supplemental petition in his judgment/decision," and (2) "[a] present violation constitutes an ongoing continuous tort." In her framing of her second issue, she also sets out Article 18A.107 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 18A.107 (setting out the length of time for which a court may authorize an order for interception of wire, oral, or electronic communications).

         In her arguments, Bogan asserts that the trial court "erred in that he excluded the 3rd supplemental amended petition as a reason not to proceed as requested in answering discovery or [to] proceed with the case" and by "exclud[ing] consideration of amendment as to reflect ongoing continuous tort violation of Electronic Surveillance with assaults and the lethality of the weapon being used." She further challenges the City's responses to her interrogatories as inadequate and argues that various people, including a Denton police officer, had trespassed on her property without probable cause.

         Counties and cities are entitled to governmental immunity and thus to immunity from suit. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). "The Texas Tort Claims Act provides a limited waiver of governmental immunity if certain conditions are met." Id. However, nowhere in Bogan's brief does she argue that she pled a valid waiver under the Texas Tort Claims Act or other statutory waiver of immunity other than to state that she "filed a 3rd amended petition on June 13, 2019 with proper jurisdictional procedure and waiver of immunity etc." While she acknowledges that Appellees "objected due to a Lack of Jurisdiction [and] sovereign immunity," she does not explain how her pleadings state a claim for which Appellees' governmental immunity has been waived. She asserts that she finds it "absurd that law enforcement is being allowed to continue in tort; attacking [her] with a lethal nuclear weapon relating to medical malpractice," but it is unclear how this assertion relates to her pleaded claims or who she alleges has been attacking her with a lethal weapon.

         To succeed on an appeal from a judgment or order granting a plea to the jurisdiction, an appellant must challenge each ground on which the appellee sought judgment and which may have supported the trial court's judgment or order. S.W. ex rel. A.W. v. Arlington Indep. Sch. Dist., 435 S.W.3d 414, 419 (Tex. App.-Fort Worth 2014, no pet.). If an unchallenged ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that ground, then this court must accept the validity of that unchallenged ground, and, because the unchallenged ground fully supports the complained-of judgment or order, we must affirm the judgment or order. Id.; see also Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (holding that when a trial court grants, without specifying grounds, a plea to the jurisdiction that is based on multiple grounds, and the appellant does not challenge each ground, the court of appeals must affirm on the unchallenged ground). Bogan does not argue in her brief that her pleadings assert claims for which immunity has been waived and that the entities she sued all had the capacity to be sued, and, as such, we must affirm the trial court's granting of the pleas to the jurisdiction.

         Bogan does argue in her brief that the trial court excluded her third amended supplemental petition and should have allowed her time to amend her petition. As to her complaint about the exclusion of her amended pleading, the record does not support her claim. Rather, the trial court specifically ...

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