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Deleon v. Villareal

Court of Appeals of Texas, Second District, Fort Worth

January 9, 2020

Anthony Deleon, Appellant
v.
Angela Villareal and Robert Miller, Appellees

          On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352-303932-18

          Before Kerr, Birdwell, and Bassel, JJ.

          MEMORANDUM OPINION

          Elizabeth Kerr Justice

         In what we construe as a single issue consisting of four subissues, Anthony Deleon appeals from the trial court's order dismissing his claims against City of Saginaw police officers Angela Villareal and Robert Miller. We will affirm.

         I.

         Background

         Deleon sued Officers Villareal and Miller for negligence per se and intentional infliction of emotional distress, claiming that they wrongfully arrested him and committed perjury when they testified against him during his two-day criminal trial. (A jury acquitted him.)

         The officers timely moved to dismiss Deleon's claims under Rule 91a. See Tex. R. Civ. P. 91a.3(a). In their motion, the officers argued that under Section 101.106(f) of the Tort Claims Act, Deleon's claims against them must be dismissed, and unless Deleon amended his lawsuit to dismiss them and to name the City of Saginaw as a defendant, his suit must be dismissed. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). Deleon responded that Section 101.106(f) did not apply because perjury was not within the general scope of the officers' employment and because he could not sue the City of Saginaw under the Tort Claims Act. Deleon thus refused to amend his pleadings to dismiss the officers and to name the City of Saginaw as a defendant.

         Two days before the hearing on their dismissal motion, the officers filed a supplemental Rule 91a dismissal motion arguing that they were absolutely immune from claims based on their testifying at trial. Deleon objected to the supplemental dismissal motion as untimely under Rule 91a.3(a) and (b). See Tex. R. Civ. P. 91a.3(a) (requiring a dismissal motion to be "filed within 60 days after the first pleading containing the challenged cause of action is served on the movant"), (b) (requiring a dismissal motion to be "filed at least 21 days before the motion is heard").

         The trial court granted both motions and dismissed Deleon's claims with prejudice. On appeal, Deleon raises what we construe as a single issue-the trial court erred by dismissing his case-consisting of four subissues:

• The officers' supplemental dismissal motion was untimely under Rule 91a.3(b);
• The officers' supplemental dismissal motion-filed and served two days before the hearing-was untimely under Rule 21(b);[1]
• Absolute immunity-the basis for the officers' supplemental dismissal motion-does not protect law-enforcement officers from perjury claims; and
• Section 101.106(f) does not apply because perjury is not within the scope of the officers' employment and because Deleon could not have brought his claims against the ...

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