Ray M. Bowen, William Kibler, John Koldus, III, J. Malon Southerland, Russell W. Thompson, Zack Coapland, Major General M.T. Hopgood, Jr., Kevin Jackson, Donald Johnson, Michael David Krenz, James Reynolds, Robert Harry Stiteler, Jr. v. John Andrew Comstock, Dixie Ann Comstock, Jacquelynn Kay Self, Individually and as Administratrix of the Estate of Jerry Self, Deceased, Andrea Heard, Individually, Kathy McClain, Individually and as Administratrix of the Estate of Bryan McClain, Deceased--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00295-CV

Ray M. Bowen, William Kibler,

John Koldus, III, J. Malon Southerland,

Russell W. Thompson, Zack Coapland,

Major General M.T. Hopgood, Jr., Kevin

Jackson, Donald Johnson, Michael

David Krenz, James Reynolds, and Robert

Harry Stiteler, Jr.,

Appellants

v.

John Andrew Comstock, Dixie Ann

Comstock, Jacquelynn Kay Self,

Individually and as Administratrix

of the Estate of Jerry Self, Deceased,

Andrea Heard, Individually, Kathy

McClain, Individually and as

Administratrix of the Estate of Bryan

McClain, Deceased, PHIL R. McCLAIN,

INDIVIDUALLY, DOMINIC BRAUS, NANCY

BRAUS, MATTHEW ROBBINS, GREGORY

ANTHONY POWELL, INDIVIDUALLY AND AS

ADMINISTRATOR OF THE ESTATE OF CHAD A.

POWELL, DECEASED, LESLIE HEARD, AND

BEVERLY JILL POWELL, INDIVIDUALLY

Appellees

From the 361st District Court

Brazos County, Texas

Trial Court No. 03-001246-CV361

DISSENTING Opinion

The issue in this appeal is straightforward: did the Defendants, all administrative employees of Texas A&M University, act in any way with respect to the 1999 bonfire collapse that would potentially render them liable in their individual capacities? Because I believe the answer is no and therefore they are entitled to the benefits of sovereign immunity, I respectfully dissent.

I begin by noting that no one contends that the University might be liable to the Plaintiffs. In this appeal, it is undisputed that the University is immune from suit and from liability under the doctrine of sovereign immunity.[1]

The gist of the dispute between the Plaintiffs and Defendants is that the Plaintiffs focus and rely on the capacity in which they sued the Defendants, i.e., the pleadings state that the Defendants are being sued in their individual capacities, whereas the Defendants focus on the capacity in which they acted when their alleged acts (or failure to act) gave rise to the alleged duties that the Plaintiffs claim were breached. I believe, based on precedent from this and other courts, that the latter analysis is correct.[2] As far as I can determine, our supreme court has never directly addressed this question.

THE PLEADINGS THEMSELVES DO NOT

DEFEAT SOVEREIGN IMMUNITY

To the extent that the Plaintiffs plead a breach of an alleged duty by any of the employees, such a duty could have existed only because of that Defendant s employment by the University. The Plaintiffs allege that the Defendants were acting in the course and scope of their employment with TAMU. In short, these Defendants were sued only because they had an official role with the University prior to or at the time of the incident.[3]

The El Paso Court of Appeals looked at the complained-of acts rather than the allegation of individual capacity in upholding a plea to the jurisdiction by the Project Manager of a municipal housing authority. Gomez v. Hous. Auth. of El Paso, 148 S.W.3d 471, 482 (Tex. App. El Paso 2004, pet. denied) ( And while [Plaintiffs] appear to argue that Armstrong was also sued in her individual capacity, their petition does not support this contention. The actions complained of involve Armstrong s duties as Project manager for HACEP and her failure to enforce screening procedures. We perceive no individual claim against Armstrong. ).

In Terrell v. Sisk, the Texarkana Court of Appeals affirmed an order granting a plea to the jurisdiction based on sovereign immunity. Terrell v. Sisk, 111 S.W.3d 274 (Tex. App. Texarkana 2003, no pet.). Addressing whether any claims were asserted against a County Judge, individually, the Court said:

We next consider whether claims were raised against Judge Sisk in his individual capacity. State employees sued in their individual capacities may be liable for their negligence if they do not have official immunity. [Citations omitted.]

We have reviewed the pleadings in detail. Although there are places where the Terrell family referred to claims against Judge Sisk in his personal capacity, there were no claims raised involving any act by the judge outside of his public servant persona. . . . In this case all allegations were of claimed wrongdoing or negligence by Judge Sisk in actions he was able to take only because of his position as a public servant. Under these circumstances, we conclude that a fair reading of the Terrell family s pleadings is that there was no effective pleading against Judge Sisk in his individual capacity.

Id. at 281-82.

The Fort Worth Court of Appeals has held that city officials who were responsible for the firing of a governmental employee and who gave an explanation for the reasons behind their actions necessarily acted within the scope of their official duties and thus they were not subject to individual liability on libel and slander claims. City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 899 (Tex. App. Fort Worth 2001, pet. denied).

In Spellmon v. Tex. Dept. of Criminal Justice, 1997 WL 109985 (Tex. App. Houston [14th Dist.] March 13, 1997, no pet.) (not designated for publication), the Fourteenth Court of Appeals addressed an inmate s pleading which stated that he was suing state-employee defendants in their individual capacities. In finding the individuals immune from suit, the Court said, We may ascertain the true nature of appellant s claims, however, by looking beyond the capacity in which he has sued the individual defendants. [Citations omitted.] Appellant clearly sued each officer in this case in his or her official capacity for actions done while functioning as an officer of the State. Id. at *3.

The San Antonio Court of Appeals noted that public employees who work in a state agency and commit acts in their official capacity are shielded by sovereign immunity. Whitehead v. UT Health Sci. Ctr., 854 S.W.2d 175, 180 (Tex. App. San Antonio 1993, no writ).

The Austin Court of Appeals reviewed a summary judgment granted to the executive director of the Board of Pardons and Paroles, who had been sued in both his official and individual capacities. Pickell v. Brooks, 846 S.W.2d 421 (Tex. App. Austin 1992, writ denied). The court held that Pickell had asserted no claims against Brooks in his individual capacity, reasoning that her petition asserted that he had acted on behalf of the agency. Id. at 424.

We have recognized this type of analysis in another context. My opinion in City of Waco v. Williams says: If a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA. A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms of negligence. City of Waco v. Williams, 209 S.W.3d 216, 222 (Tex. App. Waco 2007, pet. denied) (opinion by Vance, J.). Chief Justice Gray s opinion in Williams says: [T]he intentional tort exception c[an]not be circumvented merely by alleging that the government was negligent . . . . Id. at 231 (opinion by Gray, C.J.).

Here, the mere pleading that the Defendants acted in their individual capacities cannot circumvent the immunity that the Defendants enjoyed when they acted on behalf of the University.[4] Properly construed, the pleadings do not allege acts that might result in individual liability.

THE EVIDENCE DOES NOT DEFEAT

SOVEREIGN IMMUNITY

The Texas Supreme Court is now firmly committed to the proposition that the consideration of a plea to the jurisdiction may require a trial judge, and the reviewing court on appeal, to look beyond the pleadings. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) ( However, 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, as the trial court is required to do. ); see also County of Cameron v. Brown, 80 S.W.3d 549, 556-57 (Tex. 2002) (considering pleadings and limited jurisdictional evidence in evaluating forseeability element of premises defect claim under the Tort Claims Act); Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (examining pleadings and limited jurisdictional evidence to determine whether plaintiff affirmatively demonstrated waiver of sovereign immunity); Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001) (analyzing the facts alleged by the plaintiff and to the extent relevant, evidence submitted by the parties, in considering whether plaintiff stated a claim for injuries caused by "motor-driven equipment" under the Tort Claims Act).

The Defendants asked the trial court to examine the evidence in ruling on their pleas to the jurisdiction.[5] They told the trial court, The Plaintiffs petitions, as well as the evidence presented with this Plea and Motion, conclusively prove that the Plaintiffs are suing the Defendants for alleged ministerial conduct that occurred within their official capacity. At that time, discovery in the case was substantially complete, and the acts being relied on by the Plaintiffs had been thoroughly examined. None create an independent duty apart from their official positions with the University.

The foregoing cases demonstrate that we should look beyond the pleadings to determine whether the Plaintiffs claims can result in individual liability. The pleadings and evidence in this case demonstrates that they cannot, and the pleas to the jurisdiction should have been granted. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) ( if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted, citing Miranda, 133 S.W.3d at 227-28).

PUBLIC POLICY

The University employees also advance a public-policy argument that allowing this suit to proceed penalizes them for being public-sector employees, because in the private sector, absent a finding of alter ego, a corporate officer s or agent s individual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer s duty. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). Whether a duty exists is a question of law. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Here, the Plaintiffs have alleged no set of facts that would give rise to a legal duty owed by any University employee to Plaintiffs apart from those owed by the University.

SUMMARY

The majority s decision (1) deprives these Defendants of the protection of sovereign immunity when all of their acts were on behalf of the University; (2) subjects them to potential liability when their employer the University is immune from both suit and liability; and (3) exposes them to more liability than persons similarly situated in the private-sector.

I would find that no claim has been asserted against any University employee as an individual, reverse the trial court s orders denying their pleas to the jurisdiction, and render an order granting such pleas. Because the majority does otherwise, I respectfully dissent.

BILL VANCE

Justice

Dissenting opinion delivered and filed May 28, 2008

[1] We have held that sovereign immunity also protects the University from third-party claims seeking (a) contribution and/or indemnity, (b) a finding of proportionate responsibility under Chapter 33 of the Civil Practice and Remedies Code, and (c) to recover under a contract. Texas A&M University v. Bading, 236 S.W.3d 801, 802-03 (Tex. App. Waco 2007, pet. filed).

[2] The majority apparently relies solely on the capacity in which the Defendants were sued.

[3] The employees maintain that their activities were unrelated to the actual design and construction of the bonfire.

[4] The mere denomination of a suit as a declaratory judgment action will not defeat sovereign immunity. Tex. Natural Res. Conservation Comm n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (private parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment claim) (citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 842 (1958)).

[5] Although not required to do so under Miranda, the Defendants also alleged in their pleas to the jurisdiction that the Plaintiffs pleadings were a fraudulent attempt to create jurisdiction in the trial court. See Miranda, 113 S.W.3d 244 ( In Bland [Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)], our preclusion of a trial court's inquiry behind the facts pled in determining subject matter jurisdiction was limited to the jurisdictional amount. ).