NUMBER 13-03-00339-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JORGE LUIS AGUILAR, Appellant,
v.
PRIMITIVO RAMIREZ, ET AL., Appellees.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Memorandum Opinion by Justice Hinojosa
This is an interlocutory appeal from the trial court’s order denying the second motion for summary judgment of appellant, Jorge Luis Aguilar. Aguilar contends that as a matter of law he is entitled to immunity under section 101.106 of the Texas Civil Practice and Remedies Code because his governmental employer, the Texas Department of Public Safety (“DPS”), received a favorable judgment in federal court on claims against it based on Aguilar’s conduct. We reverse the trial court’s order and render judgment for Aguilar.
The facts and procedural history of this case are summarized in our opinion reviewing Aguilar’s first motion for summary judgment. See City of Robstown v. Ramirez, 17 S.W.3d 268, 270-71 (Tex. App.–Corpus Christi 2000, pet. dism’d w.o.j.). Therefore, in this opinion we only include those facts necessary to advise the parties of our decision in this case and the basic reasons for it. See Tex. R. App. P. 47.4.
In his second issue, Aguilar contends that the trial court erred in denying his motion for summary judgment. Specifically, Aguilar asserts that section 101.106 of the Texas Civil Practice and Remedies Code bars all claims asserted against him by appellees because the federal court dismissed all of appellees’ claims against his governmental employer, the DPS.
The standard we follow in reviewing a summary judgment is well established. The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Tex. R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true, and all reasonable inferences made and all doubts resolved in the nonmovant’s favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). When a defendant moves for summary judgment based on an affirmative defense, such as section 101.106, it has the burden to conclusively establish each element of the defense as a matter of law. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997).
Aguilar moved for summary judgment on the affirmative defense of immunity provided by section 101.106 of the civil practice and remedies code. That section provides:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106. The immunity extended to a governmental unit’s employees by section 101.106 is triggered by any judgment in a Texas Tort Claims suit against a governmental unit, including a judgment in favor of the governmental unit. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).
Appellees, Primitivo Ramirez, Librada Ramirez, and Michelle Ramirez, originally filed suit in the United States District Court for the Southern District of Texas for injuries resulting from an alleged improper execution of a search warrant. In their second amended complaint, appellees asserted that their claims against the State of Texas were brought under the Texas Tort Claims Act. Appellees contended they had fully complied with the notice requirements of the tort claims act.
On December 17, 1993, United States District Judge Hayden W. Head dismissed appellees’ claims against the DPS for assault, battery, false imprisonment, and intentional infliction of emotional distress. The federal court concluded that the tort claims act expressly preserves the State’s immunity against intentional torts. The federal court also found that the State had not waived its immunity regarding appellees’ claims against the DPS for libel and slander. After disposing of appellees’ federal claims, the federal court declined to exercise its supplemental jurisdiction over appellees’ negligence claim against the DPS and Aguilar and dismissed the claim without prejudice. It appears that no appeal was taken from this order. Thereafter, appellees re-filed their suit in state court, mirroring the same claims asserted in federal court.
Appellees contend that section 101.106 requires a judgment on the merits. They argue that because the federal court did not reach the merits of the state law claims, there is no preclusive effect on appellees’ claims against Aguilar. However, the federal court’s finding that sovereign immunity was not waived by the tort claims act is still a “judgment” under the Act. McGowen v. Huang, 120 S.W.3d 452, 458 (Tex. App.–Texarkana 2003, pet. filed); see also Liu v. City of San Antonio, 88 S.W.3d 737, 744 (Tex. App.–San Antonio 2002, pet. denied) (holding that trial court’s order granting governmental unit’s plea to jurisdiction on immunity grounds was judgment for purposes of section 101.106); Dalehite v. Nauta, 79 S.W.3d 243, 244 (Tex. App.–Houston [14th Dist.] 2002, pet. denied) (same); Lowry v. Pearce, 72 S.W.3d 752, 754 (Tex. App.–Waco 2002, pet. denied) (same). Also, two cases have specifically applied the bar to employee liability where the judgment for the governmental unit was based on the plaintiff’s failure to comply with the notice requirements of the Texas Tort Claims Act, a defense that would not have protected an employee sued individually. Cox v. Klug, 855 S.W.2d 276, 280 (Tex. App.–Amarillo 1993, no writ); Davis v. Mathis, 846 S.W.2d 84, 88-89 (Tex. App.–Dallas 1992, no writ); accord Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex. App.–El Paso 1997, no writ).
The purpose of section 101.106 is to protect a governmental employee from individual liability for acts or omissions made by the employee that are the basis of a claim made against the employer under the tort claims act. Gonzalez, 940 S.W.2d at 795. For section 101.106 purposes, it is irrelevant that the negligence claim remaining against Aguilar is a different cause of action from those dismissed in federal court against Aguilar’s employer, the DPS. Section 101.106 provides that a judgment in an action against a governmental unit bars any action against an employee. Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997). The Texas Supreme Court has determined that the language “bars any action” is an unequivocal grant of immunity in those cases to which it applies. See id. Unlike other provisions of the tort claims act, section 101.106 does not say that the provision applies only when the employee is acting within the scope of his employment or in good faith. Owens v. Medrano, 915 S.W.2d 214, 216 (Tex. App.–Corpus Christi 1996, writ denied). Whether the plaintiff’s claim against the governmental unit falls under the tort claims act is relevant; whether the plaintiff’s claim against the employee falls under the tort claims act is not. White v. Annis, 864 S.W.2d 127, 130 (Tex. App.–Dallas 1993, writ denied); see Bell v. Love, 923 S.W.2d 229, 233 (Tex. App.–Houston [14th Dist.] 1996, no writ). If the legislature had intended for a judgment under the tort claims act to bar only actions against the employee based on the same cause of action, it would have written the statute to so provide. White, 864 S.W.2d at 131. Instead, the legislature used the broad term “same subject matter.” Id. The term “same subject matter” in section 101.106 means “arising out of the same actions, transactions, or occurrences.” Bossley, 968 S.W.2d at 344.
The immunity extended by section 101.106 has been recognized as harsh. See Brand v. Savage, 920 S.W.2d 672, 675 (Tex. App.–Houston [1st Dist.] 1995, no writ). However, the Texas Supreme Court has noted:
Although a plaintiff who pursues the statutory remedy against the government may lose his or her common law remedy against the employee, the plaintiff is not required to follow this course. He or she may still opt to pursue the full common law remedy against the responsible employee, foregoing or postponing any attempt to recover from the government.
Thomas v. Oldham, 895 S.W.2d 352, 357-58 (Tex. 1995). Thus, “[o]nce the plaintiff invokes the procedural devices of the Texas Tort Claims Act, to bring a cause of action against the State, then he also is bound by the limitations and remedies provided in the statute.” State Dep’t of Highways & Pub. Transp. v. Dopyera, 834 S.W.2d 50, 54 (Tex. 1992).
Here, appellees’ state-law claims against the DPS in the federal court action were claims under the tort claims act because the DPS, an agency of the State, was named as defendant. See Urban v. Canada, 963 S.W.2d 805, 808 (Tex. App.–San Antonio 1998, no pet.). It is undisputed that Aguilar is an employee of the DPS. Thus, applying section 101.106 to this case, we conclude that the federal court’s December 17, 1993 order dismissing appellees’ claims against the DPS barred appellees’ tort claims arising from the same occurrence – the alleged improper execution of a search warrant – asserted against Aguilar in this lawsuit. Accordingly, we hold the trial court erred in denying Aguilar’s second motion for summary judgment.
We sustain Aguilar’s second issue. In view of our disposition of this issue, it is not necessary that we address Aguilar’s remaining issues. See Tex. R. App. P. 47.1.
We reverse the trial court’s order denying Aguilar’s motion for summary judgment. Under Rule 43.2 of the Texas Rules of Appellate Procedure, we render judgment that appellees take nothing against Aguilar. Tex. R. App. P. 43.2. See Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997); see also City of Hidalgo v. Prado, 996 S.W.2d 364, 374 (Tex. App.–Corpus Christi 1999, no pet.).
FEDERICO G. HINOJOSA
Justice
Memorandum Opinion delivered and filed
this the 17th day of June, 2004.