Allen Frick v. Jonathan Jergins

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

ALLEN FRICK, § No. 08-21-00176-CV

Appellant, § Appeal from the

v. § 85th Judicial District Court

JONATHAN JERGINS, § of Brazos County, Texas

Appellee. § (TC# 19-003364-CV-85)

OPINION

This appeal arises from a trial court’s granting of a plea to the jurisdiction. The lawsuit

claimed that an agent employed by the Texas Alcohol and Beverage Commission (TABC)

committed libel and malicious prosecution in connection with a sting operation focused on the sale

of alcohol to underage persons at a bar. The suit was filed against the agent individually, and not

the TABC. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND 1

At the time relevant here, Appellee Jonathan Jergins was an agent employed by the TABC.

He arrested Appellant Allen Frick for the criminal offense of selling alcohol to a minor, but Frick

was acquitted of that offense in an ensuing jury trial. Frick then sued Jergins. According to Frick’s

petition, on the evening of September 16, 2016, Jergins “was on duty as an undercover agent for

1
This case was transferred from our sister court in Waco and we decide it in accordance with the precedent of that
court to the extent required by TEX.R.APP.P. 41.3.
the [TABC]” and went into Frick’s place of employment, a bar in College Station, Texas. In the

sting operation, Jergins came with a female minor who would attempt to purchase alcohol.

The petition further alleges that while at the bar, Jergins ordered the minor to attempt to

purchase a beer from Frick. But Frick declined to serve her the beer when she could not produce

identification showing that she was over 21 years old. Frick asserts that he then asked the minor if

Jergins was her father, and the minor responded that he was. Frick then served the beer to Jergins,

who then handed it to the minor. Frick alleges, however, that Jergins falsely wrote in a report, and

later testified at a trial, that Frick served the beer to the minor. Frick was arrested and charged with

serving alcohol to a minor. See TEX.ALCO.BEV.CODE ANN. § 106.06. In an ensuing jury trial, a

video of the incident introduced into evidence purportedly showed—consistent with Frick’s

version of events—that Frick served Jergins the beer, who then gave it to the minor. The jury

acquitted Frick of the charged offense.

Frick then sued Jergins for malicious prosecution, libel under Chapter 73 of the Texas Civil

Practice and Remedies Code, and libel citing Article I, Section 8 of the Texas Constitution. In

response, Jergins filed an answer and motion to dismiss premised on section 101.106(f) of the

Texas Civil Practices and Remedies Code. 2 Jergins also filed a plea to the jurisdiction, arguing

that he was entitled to immunity because: (1) he was employed by TABC and working within the

scope of his duties for that agency when the cause of action arose; and (2) no statutory waiver of

sovereign immunity existed under the Texas Tort Claims Act.

2
That provision applies when a “suit is filed against an employee of a governmental unit based on conduct within the
general scope of that employee’s employment” and if it could have been brought against the governmental unit.
TEX.CIV.PRAC.& REM.CODE ANN. § 101.106(f). When applicable, the “suit against the employee shall be dismissed
unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant
on or before the 30th day after the date the motion is filed.” Id.

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 The trial court granted the plea to the jurisdiction and dismissed Frick’s lawsuit. On appeal,

Frick challenges that ruling, arguing that: (1) the suit was not barred under TEX.CIV.PRAC.&

REM.CODE ANN. § 101.106 because Frick sued Jergins individually and not as an employee of the

State of Texas; (2) section 101.106 does not apply because Jergins’ actions fell outside the scope

of his employment and did not occur as part of a TABC officer’s normal, discretionary duties of

employment; and (3) his claim was not based on a violation of the Penal Code, but only references

the Penal Code violations to highlight that Jergins was acting outside the scope of his employment.

II. APPLICABLE LAW AND STANDARD OF REVIEW

A. Pleas to the Jurisdiction

Sovereign immunity generally shields the State, its agencies, and its officials from lawsuits

unless immunity is waived by the legislature. See Travis Cent. Appraisal Dist. v. Norman, 342

S.W.3d 54, 57-58 (Tex. 2011); Tooke v. City of Mexia, 197 S.W.3d 325, 331 n.11 (Tex. 2006).

Texas recognizes two threads of immunity: (1) immunity from suit, even when the government

entity’s liability is not disputed; and (2) immunity from liability, even though the government

entity has consented to the suit. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571

S.W.3d 738, 746 (Tex. 2019). Here, we deal with immunity from suit, which implicates a trial

court’s subject matter jurisdiction. Id. A plaintiff shoulders the burden of alleging facts establishing

that the trial court has subject matter jurisdiction over its claims, or in other words, that a

governmental defendant’s immunity from suit has been waived. See Sepulveda v. County of

El Paso, 170 S.W.3d 605, 610 (Tex.App.--El Paso 2005, pet. denied), citing Texas Assoc. of

Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993).

An employee of a governmental entity may raise immunity through a plea to the

jurisdiction, which challenges a court’s authority to hear the case. See Donohue v. Koehler, No. 04-

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16-00190-CV, 2017 WL 943427, at *4 (Tex.App.--San Antonio Mar. 8, 2017, no pet.) (mem. op.),

citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (“A plea to the jurisdiction

is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the

claims asserted have merit”). The plea may challenge either the adequacy of a plaintiff’s pleadings

or the existence of jurisdictional facts to support a finding of subject matter jurisdiction. Texas

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). When a plea to the

jurisdiction challenges the pleadings alone, the trial court must construe the pleadings liberally in

favor of the pleader, looking to the pleader’s intent, and taking the pleader’s allegations as true.

Id. at 226, 228. If the pleading lacks sufficient facts to demonstrate the trial court’s jurisdiction,

but does not demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency

and the plaintiff should be afforded the opportunity to amend. Dohlen v. City of San Antonio, 643

S.W.3d 387, 397-98 (Tex. 2022) (recognizing plaintiffs’ right to amend their pleadings to allege

facts supporting the elements of their claim against the defendant city). But when the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted

without allowing the plaintiff an opportunity to amend. Id. at 397; Texas A&M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“[A] pleader must be given an opportunity to amend

in response to a plea to the jurisdiction only if it is possible to cure the pleading defect.”).

Whether a party has met its burden of alleging sufficient facts that demonstrate a trial

court’s subject matter jurisdiction is a question of law that we review de novo. Miranda, 133

S.W.3d at 226.

B. Waiver of Immunity under the Texas Tort Claims Act

The Texas Tort Claims Act (TTCA) provides a limited waiver of sovereign immunity.

Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014) (per curiam), citing TEX.CIV.PRAC.&

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REM.CODE ANN. § 101.023. Aside from defining when immunity is waived, one of its provisions—

section 101.106—addresses whether a suit should be filed against a governmental employee or the

responsible governmental entity. Section 101.106, titled “election-of-remedies,” requires a

plaintiff to decide at the outset “whether an employee acted independently and is thus solely liable,

or acted within the general scope of his or her employment such that the governmental unit is

vicariously liable.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008).

The legislature requires the plaintiff to make this decision to “reduc[e] the resources that the

government and its employees must use in defending redundant litigation and alternative theories

of recovery.” Id. To that end, the statute compels “dismissal of government employees when suit

should have been brought against the government.” Alexander, 435 S.W.3d at 790, quoting Texas

Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013).

The provision works as follows. Section 101.106(a) provides that suing the governmental

unit is “an irrevocable election” to proceed against the governmental unit “and immediately and

forever bars any suit or recovery by the plaintiff against any individual employee” for the same

matter. TEX.CIV.PRAC.& REM.CODE ANN. § 101.106(a). Section 101.106(b) addresses the

converse, making a suit against the employee an irrevocable election to pursue only the employee

and not the governmental unit. Id. § 101.106(b). But section 101.106(f) provides for a relief valve

when a suit may have been mistakenly filed against the employee, and not the governmental entity.

It permits the plaintiff to substitute in the governmental entity:

(f) If a suit is filed against an employee of a governmental unit based on conduct
within the general scope of that employee’s employment and if it could have been
brought under this chapter against the governmental unit, the suit is considered to
be against the employee in the employee’s official capacity only. On the
employee’s motion, the suit against the employee shall be dismissed unless the
plaintiff files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date the motion
is filed.

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Id. § 101.106(f). The key to applying the statute starts with the question of whether the suit is

against an employee in an individual or official capacity. Alexander, 435 S.W.3d at 791. To answer

that question, a court must determine: (1) whether the alleged conduct was within the scope of the

employee’s employment; and (2) whether the plaintiff’s suit could have been brought under the

TTCA against the employee’s governmental employer. See id. at 791-92.

The TTCA defines “scope of employment” as “the performance for a governmental unit of

the duties of an employee’s office or employment and includes being in or about the performance

of a task lawfully assigned to an employee by competent authority.” TEX.CIV.PRAC.& REM.CODE

ANN. § 101.001(5). The Texas Supreme Court has recognized that “‘[a]n employee’s act is not

within the scope of employment when it occurs within an independent course of conduct not

intended by the employee to serve any purpose of the employer.’” Alexander, 435 S.W.3d at 792,

quoting Restatement (Third) of Agency § 7.07(2) (2006). Thus, the ultimate question for the

application of section 101.106 requires a determination as to “whether an employee acted

independently and is thus solely liable, or acted within the general scope of his or her employment

such that the governmental unit is vicariously liable.” Id. at 790, quoting Garcia, 253 S.W.3d at

657.

III. PLEA TO THE JURISDICTION

A. Jergins was acting within the scope of his employment

Frick argues that his claims were not barred by section 101.106(f) because: (1) Frick sued

Jergins individually, not the TABC; and (2) Jergins’ false accusations against Frick “were not part

of a TABC Officer’s normal, discretionary duties of employment,” which rendered Jergins’ actions

during the incident outside the scope of his employment. We disagree.

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 In Laverie v. Wetherbe, the Texas Supreme Court held that the scope-of-employment

analysis under the TTCA does not turn on an employee’s subjective state of mind. 517 S.W.3d

748, 752-53 (Tex. 2017). There, Wetherbe, a professor at a public university, sued another

professor at the same university, Laverie, in her individual capacity for defamation. Id. at 750.

Laverie moved for summary judgment contending that she made the allegedly defamatory

statements in the scope of her employment with the university, a governmental unit, and was

therefore immune from suit in her individual capacity. Id. The Texas Supreme Court upheld a

summary judgment in Laverie’s favor, recognizing that “[n]othing in the election-of-remedies

provision or the statutory definition of ‘scope of employment’ suggests subjective intent is a

necessary component of the scope-of-employment analysis.” Id. Rather, the TTCA “focuses on

the ‘performance . . . of the duties of an employee’s office or employment,’ which calls for an

objective assessment of whether the employee was doing her job when she committed an alleged

tort, not her state of mind when she was doing it.” Id. at 753, citing TEX.CIV.PRAC.& REM.CODE

ANN. § 101.001(5). The court further reasoned that to hold otherwise would depart from the scope-

of-employment analysis in respondeat superior cases, “which concerns only whether the employee

is ‘discharging the duties generally assigned to her.’” Id. at 753, quoting City of Lancaster v.

Chambers, 883 S.W.2d 650, 658 (Tex. 1994). Thus, the “fundamental” inquiry is not whether the

employee did their job “well or poorly” or “selfishly or altruistically”, but simply whether they did

their job. Id. at 755; see also Garza v. Harrison, 574 S.W.3d 389, 401 (Tex. 2019) (“[T]he

employee’s state of mind, motives, and competency are irrelevant so long as the conduct itself was

pursuant to the employee’s job responsibilities.”).

The court made a related point in Alexander v. Walker, a case in which two Harris County

peace officers were sued for common law tort claims, including slander and malicious prosecution.

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The claims all arose from conduct incident to their arrest of the plaintiff. 435 S.W.3d at 790. In

concluding that the officers were entitled to relief under section 101.106(f), the Texas Supreme

Court wrote that the plaintiff “did not allege any independent course of conduct by the officers not

intended to serve any purpose of Harris County.” Id. at 792.

Frick’s petition alleges that Jergins’ improper conduct occurred while he was conducting

a sting operation to uncover violations of section 106.06 of the Texas Alcoholic Beverage Code.

That provision prohibits the serving of alcoholic beverages to underage persons. See

TEX.ALCO.BEV.CODE ANN. § 106.06(a) (“a person commits an offense if he . . . gives or with

criminal negligence makes available an alcoholic beverage to a minor’); id. § 106.03 (a) (“A person

commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.”).

Moreover, Frick’s petition specifically alleges that Jergins was “on duty as an undercover agent

for [TABC]” during the incident. (emphasis supplied) And Jergins’ alleged conduct in conducting

a sting operation and assisting in the prosecution of the case comports with the statutory duties

required of the TABC and its employees. See TEX.ALCO.BEV.CODE ANN. § 5.31 (a), (b) (TABC

“shall inspect, supervise, and regulate every phase of the business of . . . selling . . . alcoholic

beverages” and shall “promote legal and responsible alcohol consumption”); id. § 5.33 (“The

commission shall supervise and regulate licensees and permittees and their places of business in

matters affecting the public.”); id. § 5.36 (a) (“The commission shall investigate violations of this

code and of other laws relating to alcoholic beverages, and shall cooperate in the prosecution of

offenders before any court of competent jurisdiction.”); id. § 5.14 (TABC “may commission as

many inspectors and representatives as are necessary to enforce this code” and “[e]ach

commissioned inspector and representative has all the powers of a peace officer coextensive with

the boundaries of the state”).

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 As was the case in Alexander, Frick “did not allege any independent course of conduct by

the officer[] not intended to serve any purpose” of the TABC. See Alexander, 435 S.W.3d at 792.

Rather, Frick’s pleadings explicitly state that Jergins was “on duty as an undercover agent for

[TABC]” when the incident occurred, and nothing within Frick’s pleadings suggest that Jergins’

actions fell outside the scope of his employment as a TABC agent or that he was acting to further

his own purposes or intentions. 3 Moreover, if Frick’s suit is based on Jergins’ subjective intent to

maliciously prosecute Frick or commit libel against him, we must disregard that intent and focus

solely on the objective circumstances that establish whether he was acting within the scope of his

duties during the incident. See Laverie, 517 S.W.3d at 752-53.

Thus, we agree with the trial court that Frick’s suit is based on Jergins’ conduct within the

general scope of his employment as an agent with the TABC. See Alexander, 435 S.W.3d at 792;

see also Koehler, 2017 WL 943427, at *5-6 (plea to the jurisdiction for claims for intentional torts

and violations of plaintiff’s rights under the Texas Constitution, which were allegedly committed

by officers who wrongfully arrested defendant, was properly granted under section 101.106(f)

when the plaintiff failed to allege an independent course of conduct by the officer intended to

further the officers’ own purposes, rather than those of the police department).

B. Frick’s claims could have been brought under the TTCA against TABC

The second predicate of section 101.106(f) is that the claim could have been brought under

this chapter against the governmental unit. See TEX.CIV.PRAC.& REM.CODE ANN. § 101.106(f).

Frick argues that because he could not have sued the TABC for malicious prosecution—an

intentional tort under the TTCA—section 101.106(f) does not apply to him. But he misconstrues

the section. The “if-it-could-have-been-brought” requirement does not refer to only those tort

3
Frick did not ask below, nor on appeal, for an opportunity to amend his petition, and he does not suggest any plausible
basis for how an amended pleading would place Jergins outside the course and scope of his duties as a TABC officer.

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claims for which the Tort Claims Act waives immunity. See Franka v. Velasquez, 332 S.W.3d 367,

375 (Tex. 2011).

The TTCA waives governmental immunity in only three areas: (1) claims arising out of

the use of motor driven vehicles and equipment; (2) claims arising from a condition or use of

personal property; and (3) claims arising from a condition or use of real property. Cronen v. Ray,

No. 14-05-00788-CV, 2006 WL 2547989, at *4 (Tex.App.--Houston [14th Dist.] Sept. 5, 2006,

pet. denied) (mem. op.), citing TEX.CIV.PRAC.& REM.CODE ANN. § 101.021. And to be sure, the

TTCA does not waive immunity for claims arising from intentional torts, such as false arrest or

imprisonment. See TEX.CIV.PRAC.& REM.CODE ANN. § 101.057(2); see also Texas Dep’t of Pub.

Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (the TTCA excludes waiver of immunity for

claims for intentional torts); Cronen, 2006 WL 2547989, at *4 (same). But just because the TTCA

does not waive immunity for a specific claim does not mean that such a claim was not brought

under the TTCA. See Franka, 332 S.W.3d at 375 (“Accordingly, we hold that for section

101.106(f), suit ‘could have been brought’ under the Act against the government regardless of

whether the Act waives immunity from suit.”); see also Donohue v. Dominguez, 486 S.W.3d 50,

55 (Tex.App.--San Antonio 2016, pet. denied) (“Because the Tort Claims Act 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] for purposes of section 101.106.”), quoting Garcia, 253 S.W.3d at 659.

Frick’s claims for libel and malicious prosecution against Jergins were tort claims that

could have been asserted against the TABC, and the second prong of section 101.106(f) has been

satisfied. 4 See Cronen, 2006 WL 2547989 at *4 (trial court correctly granted plea to the

4
Frick also alleged a violation of his rights under Article I, Section 8 of the Texas Constitution. Apart from whether
this provision implies a private right of action—an issue we do not decide—any claim that could be asserted would

10
jurisdiction because plaintiff’s intentional tort claims against police officer for false arrest and false

imprisonment were barred by governmental immunity under the TTCA), citing TEX.CIV.PRAC.&

REM.CODE ANN. §§ 101.021, 101.057; see also Koehler, 2017 WL 943427, at *6 (claims against

an officer for unlawful restraint, abuse of office, and aggravated assault were tort theories that

could have been brought under the TTCA against the officer’s police department).

C. Conclusion

Because Frick’s suit against Jergins alleges conduct within the general scope of Jergins’

employment and could have been brought under the TTCA against TABC, Frick’s suit is against

Jergins in his official capacity only. Thus, Jergins was entitled to dismissal of the claims against

him in an individual capacity under section 101.106(f), and the trial court did not err by granting

the plea to the jurisdiction on this basis.

Frick’s Issues One and Two are overruled.

IV. SUIT FOR TEXAS PENAL CODE VIOLATIONS

Finally, Frick argues in Issue Three that he did not sue Jergins for violating the Texas Penal

Code, but that the violations were “alleged in order to meet his pleading burden of demonstrating

Jergins is not entitled to official immunity, because his actions are in violation of settled statutory

and legal standards, and were performed in bad faith.” We do not understand the trial court’s order

to turn on whether Frick pleaded violations of a criminal statute or not. Consequently, the issue

does not raise an independent basis to set aside the trial court’s order. Moreover, Frick cites no

authority or citations to the record in support of this argument. For that reason alone, this issue is

improperly briefed and is waived. See TEX.R.APP.P. 38.1(i) (requiring an appellant’s brief to

not exist apart from the TTCA. See Donohue v. Koehler, No. 04-16-00190-CV, 2017 WL 943427, at *7 (Tex.App.--
San Antonio Mar. 8, 2017, no pet.) (mem. op.) (plaintiff’s claims for violating rights under the Texas Constitution
were properly dismissed because they were not brought under an independent statutory waiver of immunity, and
because none of the constitutional provisions implied a private right of action apart from the TTCA).

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contain “a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.”); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.--El Paso 2007,

no pet.) (“Failure to cite legal authority or provide substantive analysis of the legal issue presented

results in waiver of the complaint.”).

Frick’s Issue Three is overruled.

V. CONCLUSION

We affirm the trial court’s judgment granting Jergins’ plea to the jurisdiction.

JEFF ALLEY, Justice

November 8, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.
Rodriguez, C.J., concurring

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