Concurring opinion issued July 29, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-01115-CV
———————————
THE BOARD OF TRUSTEES OF THE GALVESTON WHARVES,
Appellant
V.
E.L. O’ROURKE, Appellee
On Appeal from the County Court at Law No. 2
Galveston County, Texas
Trial Court Case No. 61873
CONCURRING OPINION
When the Court’s opinion issued on May 30, 2013, my study of the case was
still on-going and I had sufficiently grave reservations regarding the resulting
disposition that I voted to dissent, with my dissent to follow. I have since
concluded that I concur in the judgment of the Court despite Mr. O’Rourke being
left without a remedy for having been assaulted, targeted and maligned. As
pleaded, his is the “you can’t get there from here” dilemma.
The majority opinion’s very first sentence of the “Background” section
describes appellee E. L. “Ted” O’Rourke as, “president [sic] of the International
Longshoremen’s Association Local 20” (ILA), who “has a history of altercations
with the Port of Galveston Police Department.” Not only is such a shadowy cast of
O’Rourke (a 34 year member of the ILA, he was elected as the Local’s President
eleven years ago) uncalled for, the record reflects that it was an assault upon
O’Rourke by Port Police Officer Perkins that gives rise to this case. 1 Indeed, there
is a history, but it is a history of harassment of O’Rourke and Local 20 members by
Galveston City police officers working at the Port or Port Policemen themselves
(including Officer Perkins), dating from 2002 when O’Rourke intervened on behalf
of porters (who handle luggage from cruise lines that enter the Port) being stopped
by the Port Police on pretext stops in order to “persuade” them to kick-back some
of the tip money the porters received from the passengers. When O’Rourke
demanded such “shake downs” cease, the Port Police took note and intimidation
commenced soon thereafter (January 2003) when O’Rourke was given a parking
ticket, despite his car being parked off Port property and legally parked.
1
Perkins had been subject of nine prior complaints for which he was never
disciplined.
2
The next interchange between Perkins and O’Rourke was December 2,
2007, when Perkins ticketed O’Rourke’s car. Believing he was legally parked,
O’Rourke sought an explanation of the violation from Perkins, whose response
was “You remember what you did to me” (referencing the porter “shake-down”
episode). O’Rourke avers that this exchange resulted in Perkins grabbing his neck
and pinning him against a bus.
O’Rourke’s Original Petition made claims against governmental entities as
well as individuals. He ultimately abandoned his intentional tort claims against the
individuals and sought non-monetary declaratory and injunctive relief against the
Wharves that would a) stop surveillance focused upon him when at the Port; b)
acknowledge Perkins’s misconduct and discipline him for it; and c) end targeted
surveillance of anyone else. As actions comprising “illegalities or conduct outside
of Appellants’ statutory authority,” these requests for declaratory and injunctive
relief fall within the ultra vires exception to governmental immunity. See City of
El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). The ultra vires exception,
however, only applies to individual state actors, and as such, the Wharves were
entitled to dismissal of these claims. See id. at 372–73. Threading the needle in
such cases is increasingly difficult, and pursuit of declaratory and injunctive relief
against the individual state actors in their official capacities, as opposed to the
3
governmental entity, may have been the only means to survive the plea to the
jurisdiction.
Conclusion
Accordingly, I concur in the judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Justice Sharp, concurring.
4