Texas State Technical College v. Ronnie Wehba--Appeal from 32nd District Court of Nolan County

Opinion filed March 9, 2006

In The

Eleventh Court of Appeals

__________

   No. 11-05-00287-CV

__________

   TEXAS STATE TECHNICAL COLLEGE, Appellant

V.

RONNIE WEHBA, Appellee

On Appeal from the 32nd District Court

Nolan County, Texas

Trial Court Cause No. 18,627

M E M O R A N D U M O P I N I O N

The trial court denied the plea to the jurisdiction filed by Texas State Technical College (TSTC) in which it alleged that it was immune from suit. We find TSTC is immune from liability for Ronnie Wehba=s claims and reverse.

Background Facts

In February 2003, Wehba, an employee of TSTC, was accused of stealing TSTC property. While conducting a search of Wehba=s home, TSTC employees found the property they believed to be stolen and took it into their possession. TSTC subsequently terminated Wehba=s employment and allegedly made false statements about Wehba=s possession of the property. Six weeks later, TSTC returned the property to Wehba after discovering that it was not stolen.

In February 2005, Wehba sued TSTC alleging claims for invasion of privacy, conversion, libel, slander, and intentional infliction of emotional distress. In response, TSTC filed a plea to the jurisdiction alleging that it enjoyed sovereign immunity from suit. The trial court denied the plea, and TSTC filed this interlocutory appeal from that order.

Issues

Appellant challenges the trial court=s ruling with two issues. First, appellant asserts that Tex. Educ. Code Ann. ' 135.55 (Vernon 2002), which provides that TSTC Amay sue, and may be sued,@ is not a clear and unambiguous waiver of immunity from suit. Second, appellant argues that, even if Section 135.55 waives TSTC=s immunity from suit for some purposes, its immunity from suit for intentional torts is preserved.

Discussion

We need not address TSTC=s first issue on appeal because we agree with TSTC on its second issue, that immunity from suit is preserved for causes of action alleging intentional torts.

Even if we were to hold that Section 135.55 is a general waiver of immunity from suit, such a waiver would be limited in this case by the Texas Tort Claims Act (TTCA).[1] The TTCA is a special provision that waives immunity from suit only to a limited degree. Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 450 (Tex. App.CFort Worth 2001, no pet.). If a general statutory provision conflicts with a special provision, the provisions shall be construed, if possible, to give effect to both. See Tex. Gov=t Code Ann. ' 311.026(a) (Vernon 2005). Additionally, if two statutes cannot be reconciled, we give precedence to the TTCA as the later-enacted and more specific statute controlling waiver of sovereign immunity from both suit and liability in tort cases. City of San Antonio v. Butler, 131 S.W.3d 170, 176 (Tex. App.CSan Antonio 2004, pet. filed)(citing Tex. Gov=t Code Ann. ' 311.025 (Vernon 2005)).

The TTCA provides in relevant part:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) 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.

Section 101.021.

The above provision lists the only circumstances in which immunity is waived under the TTCA. The TTCA does not waive immunity for intentional torts. See Section 101.057(2)(stating that the TTCA does not apply to claims Aarising out of assault, battery, false imprisonment, or any other intentional tort@). When a plaintiff alleges tort claims, and the TTCA does not apply, immunity is still the rule. General Electric Co. v. City of Abilene, 795 S.W.2d 311, 313 (Tex. App.CEastland 1990, no writ).

Wehba asserts, however, that the TTCA supplements, rather than restricts, the waiver of immunity provided by Section 135.55 because of the language of Section 101.003 of the TTCA, which provides that A[t]he remedies authorized by this chapter are in addition to any other legal remedies.@ Section 101.003. We disagree. Section 135.55 is not a remedy.[2] It either waives immunity from suit, as Wehba contends, or refers to capacity to appear in court, as TSTC contends. In neither case, can it be construed as a legal remedy. Furthermore, to construe the TTCA as supplemental to Section 135.55 would render the TTCA meaningless. If this court were to do so, future plaintiffs could attempt to circumvent the narrow waiver provisions of the TTCA by suing under Section 135.55 instead of the TTCA, and such a result cannot be what the legislature intended.

Wehba further asserts that, when TSTC injured him, it was engaged in proprietary conduct for which there is no immunity under the TTCA. Under the TTCA, proprietary functions are those that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality. Section 101.0215. This section of the TTCA does not apply in this case because TSTC is not a municipality.

Wehba also asserts that TSTC did not intend to injure him and that his causes of action are not, therefore, intentional torts. It is a basic premise of tort law that an actor need not intend the specific injury complained of for an intentional tort to be committed. Conversion, invasion of privacy, intentional infliction of emotional distress, and defamation are all considered intentional torts for which the TTCA preserves immunity. See, e.g., Texas River Barges v. City of San Antonio, 21 S.W.3d 347, 356-57 (Tex. App.CSan Antonio 2000, pet. denied)(city immune from claim for conversion); Univ. of Texas Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.CHouston [1st Dist.] 1999, pet. dism=d w.o.j.)(state agency immune from claims for intentional infliction of emotional distress and invasion of privacy).

We hold that the TTCA does not waive TSTC=s immunity from suit for intentional torts. We sustain appellant=s second issue on appeal.

Conclusion

The trial court erred in overruling Texas State Technical College=s plea to the jurisdiction. We reverse the order of the trial court and render judgment that Texas State Technical College=s plea to the jurisdiction is granted and that Ronnie Wehba=s cause of action against Texas State Technical College is dismissed.

RICK STRANGE

JUSTICE

March 9, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (Vernon 2005 & Supp. 2005).

[2]A remedy is A[t]he means of enforcing a right or preventing or redressing a wrong.@ Black=s Law Dictionary 1296 (7th ed. 1999).