City of Arlington v. Randall

301 S.W.3d 896

CITY OF ARLINGTON, Texas and Alison Turner, Appellants, v. Mark Allen RANDALL, Appellee.

No. 2-08-374-CV.

Court of Appeals of Texas, Fort Worth.

December 10, 2009.

Denise V. Wilkerson, Melinda H. Barlow, Arlington, TX, for Appellants.

Art Brender, Jason C.N. Smith, Law Offices of Art Brender, Fort Worth, TX, for Appellee.

PANEL: GARDNER, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

This is an interlocutory appeal by Appellants the City of Arlington, Texas and Alison Detective Turner from the trial court's denial of Appellants' plea to the jurisdiction and motion to dismiss. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5), (8) (Vernon 2008). We will affirm in part, reverse in part, and remand this case to the trial court.

II. FACTUAL AND PROCEDURAL BACKGROUND

Arlington police obtained a warrant to arrest Appellee Mark Allen Randall for fraud in obtaining a controlled substance by forgery. The arrest warrant, issued by an Arlington municipal court, was based on Detective Turner's affidavit stating that Randall had attempted to pass a forged prescription at a grocery store pharmacy. According to Detective Turner's affidavit, on December 8, 2005, a man presented the pharmacist technician with a prescription, told him it was for Carolyn Miller, gave the pharmacist technician Carolyn Miller's phone number, and said that she lived at 2572 West Park Row, Arlington, Texas 76017. The pharmacist technician suspected that the prescription was forged and informed the pharmacist on duty, who contacted the doctor named on the prescription. The doctor confirmed that the prescription was forged. The man left the pharmacy before police arrived. The pharmacist technician told police that the man was a white male in his thirties, approximately 5'8" tall, with a thin build, dark hair, and a goatee or mustache.

Detective Turner investigated the offense and ran a computer search of the phone number given to the pharmacist technician. She explained, "Whenever I put the phone number in from that script it popped up with people that have that phone number and it showed just Carolyn Miller and Mark Allen Randall." The search results did not indicate when these individuals had used that phone number. Randall alleged in his petition that the phone number written on the prescription had been assigned to him only from June 2000 to October 2000—five years prior to the alleged offense—that the number had been disconnected and reassigned in 2000, and that he had moved to Houston in 2005. The only connection between Randall and the name "Carolyn Miller" was that both of them had been assigned the same phone number in the past. The address that the man had given the pharmacist technician did not exist.

Detective Turner prepared a photo lineup using driver's license photographs of six individuals, including Randall. The pharmacist technician positively identified Randall from the photo lineup, but the pharmacist was unable to identify anyone from the lineup. Although Randall's driver's license showed that he was 6'3"— seven inches taller than the height estimated by the pharmacist technician—and lived in Houston, Detective Turner did not inform the magistrate of these facts when seeking an arrest warrant. The warrant issued, and Randall was arrested for fraud. The State presented the case to the grand jury, which returned a "no bill."

On January 30, 2008, Randall filed suit against Appellants seeking damages and declaratory relief. In his original petition, Randall alleged that Appellants were negligent and that they had violated his rights under the Texas Constitution. In addition to damages, Randall sought a declaration that Appellants had violated his constitutional rights and a declaration ordering the expungement of all evidence of his arrest; Randall also sought attorney's fees.

Appellants filed a plea to the jurisdiction and motion to dismiss, asserting that Detective Turner was entitled to official immunity, that the City was entitled to governmental immunity, and that Detective Turner was entitled to immediate dismissal from the suit pursuant to section 101.106(e) of the Texas Tort Claims Act (the TTCA).¹ Randall twice amended his petition, ultimately deleting his negligence claims and adding a request for an injunction prohibiting Appellants from continuing to claim that Randall had been arrested for, or had committed, fraud and ordering that the records of his arrest not be disclosed and be destroyed. The trial court denied Appellants' plea to the jurisdiction and motion to dismiss Detective Turner from the suit. Appellants perfected this interlocutory appeal.

On appeal, Appellants first argue that the trial court erred by denying the motion to dismiss Detective Turner from the suit. If they are correct, then Detective Turner should no longer be a party to any claims that Randall brought under the TTCA. For that reason, we will first address the motion to dismiss. We will then address Appellants' arguments regarding the denial of their plea to the jurisdiction based on Randall's claims for damages, injunctive relief, and declaratory judgment based on Appellants' alleged constitutional violations.

III. MOTION TO DISMISS PURSUANT TO SECTION 101.106(E)²

In their first issue, Appellants argue that the trial court erred by denying the City's motion to dismiss Detective Turner from the lawsuit. Specifically, Appellants assert that Detective Turner is entitled to immediate dismissal from the suit pursuant to section 101.106(e) of the civil practice and remedies code because Randall's claims were brought under the TTCA. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e).

A. Election of Remedies Provision

Under the TTCA's election scheme, recovery against an individual employee is barred and may be sought against only the governmental unit in three instances: (1) when suit is filed against the governmental unit only, Tex. Civ. Prac. & Rem.Code Ann. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f).

Section 101.106, entitled "Election of Remedies," is designed to force a plaintiff to decide at the outset whether an employee acted independently, and is thus solely liable, or whether she acted within the general scope of her employment so that the governmental unit is vicariously liable. See Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 657 (Tex.2008); Brown v. Ke-Ping Xie, 260 S.W.3d 118, 121 (Tex.App.-Houston [1st Dist.] 2008, no pet.). By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the TTCA or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs. Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 397 (Tex.App.-Fort Worth 2008, no pet.) (citing Garcia, 253 S.W.3d at 656-57).

The City relied on subsection (e) in its motion to dismiss. That subsection specifically provides, "If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit." Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (emphasis added). All tort theories alleged against a governmental unit are brought "under the [TTCA]" for purposes of section 101.106. See Garcia, 253 S.W.3d at 659 (citing Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex. 1997)). As the Texas Supreme Court has explained, "Because the [TTCA] is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be `under the [TTCA].'" Id.; see also Tex. Bay Cherry Hill, L.P., 257 S.W.3d at 400 (dismissing all tort claims against employee despite fact that plaintiff did not invoke or refer to the TTCA in its pleadings). However, claims against the government brought pursuant to waivers of sovereign immunity that exist apart from the TTCA are not brought "under [the TTCA]." See Garcia, 253 S.W.3d at 659.

A governmental entity perfects the statutory right to a dismissal of its employees upon the filing of a motion to dismiss. Brown, 260 S.W.3d at 122; Villasan v. O'Rourke, 166 S.W.3d 752, 758 (Tex. App.-Beaumont 2005, pet. denied). Even if the plaintiff amends his petition after the government files a motion to dismiss, the amended petition does not moot the right created by the filing of a motion under section 101.106. Villasan, 166 S.W.3d at 758.

B. Application of Section 101.106(e) to Randall's Claims

The City based its section 101.106(e) motion to dismiss Detective Turner on Randall's original petition, thus perfecting its statutory right to a dismissal of its employee, Detective Turner, upon the filing of that motion. See Villasan, 166 S.W.3d at 758. We therefore look to Randall's original petition, rather than any of his amended petitions, to determine whether the trial court erred by not dismissing Detective Turner from the suit. See Brown, 260 S.W.3d at 122; Villasan, 166 S.W.3d at 758.

Randall contends on appeal that section 101.106(e) does not apply to this case because he filed suit "pursuant to the Texas Constitution" and sought only declaratory relief based on these constitutional claims, but in his original petition, he sought damages and a declaratory judgment based on Appellants' alleged negligence and constitutional violations. We will address the application of 101.106(e) to each of these claims.

Randall's claims for Appellants' alleged negligence clearly fall under the TTCA. See, e.g., Dallas County Mental Health & Mental Retardation v. Bossley, 968...