City of Houston v. Houston Metro Security and James Fowler

Opinion issued March 23, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00532-CV
———————————
CITY OF HOUSTON, Appellant
V.
HOUSTON METRO SECURITY AND JAMES FOWLER, Appellees

On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2022-28339

MEMORANDUM OPINION

Appellant, the City of Houston (the City), appeals the trial court’s order

denying its Rule 91a motion to dismiss appellees Houston Metro Security (HMS)

and James Fowler’s claims for tortious interference with contract, negligence per se,

negligent training or supervision, conspiracy, and ultra vires. In two issues, the City
contends that the trial court erred by failing to dismiss appellees’ tort and ultra vires

claims because they lack any basis in law. We reverse the trial court’s order and

render judgment dismissing appellees’ claims.

Background

HMS is a private security company that provides security services to clients

in high crime areas in the Houston metropolitan area. Fowler is the owner and

manager of HMS.

In May 2022, appellees sued the City asserting claims for tortious interference

with contract, two counts of negligence per se, two counts of negligent training or

supervision, conspiracy, and ultra vires. Their claims were based on the following

allegations:

• On or about May 15, 2020, Fowler and HMS personnel apprehended a known
and documented violent trespasser and called the Houston Police Department
(HPD) for assistance. HPD did not arrest the violent trespasser but instead
instructed him that he could stay on the property contrary to Fowler’s
instructions.

• Since that occasion, Fowler and HMS personnel apprehended several other
known felons on the property who HPD subsequently released and who
perpetrated other violations of the law.

• As a result of HMS’s inability to remove known felons from the property—
caused directly by HPD’s unwillingness to arrest felons detained by HMS—
an apartment complex terminated its contract with Fowler and HMS.

• Subsequently, information about Fowler, available only from criminal records
which are subject to an Order of Expunction, was wrongfully transmitted to
the Texas Department of Public Safety (DPS) by City/HPD personnel. Fowler

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 was found “Not Guilty” in the underlying criminal case, the records of which
were legally expunged.

Appellees sought to recover damages for (1) the loss of the value of contracts,

(2) expenses associated with bringing legal action to “re-expunge” Fowler’s record,

and (3) damage to Fowler’s reputation and the resultant loss of the pecuniary

measure of his reduced employability, as well as exemplary damages.

The City answered, asserting a general denial as well as various defenses

including governmental immunity under the Texas Tort Claims Act (TTCA).

The City filed a Rule 91a motion to dismiss contending that it was immune

from appellees’ claims of negligence per se, negligent training or supervision,

tortious interference with contract, and conspiracy. It argued that appellees’ assertion

in their petition that the City waived its immunity was based on provisions in the

TTCA—specifically, Sections 101.0215 and 101.025—that do not create an

independent waiver of immunity. Thus, they argued, appellees were still required to

plead and prove that their allegations fell within the TTCA’s waiver provisions set

forth in Section 101.021, which they failed to do. The City further argued that the

TTCA does not clearly or unequivocally waive the City’s immunity for claims of

negligence per se or negligent training or supervision, and the Act expressly excepts

intentional torts such as tortious interference with contract and conspiracy from its

waiver.

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 Appellees responded that their claims against the City were not based on the

City’s performance of governmental functions for which the City enjoys immunity

but instead involve the City’s exercise of non-governmental, proprietary acts for

which the City’s immunity is waived. They further argued that their claims were

based on the City’s non-discretionary acts that are unauthorized by law and thus fall

within the ultra vires exception to governmental immunity.

The City replied that appellees’ allegations were premised on HPD officers’

alleged failure to arrest individuals whom HMS personnel detained and that

“arresting people clearly falls within the governmental function of ‘police and fire

protection and control,’ such that the TTCA governs appellees’ suit.” The City

further argued that appellees’ response presented a theory not set forth in their

original petition and it failed to identify a clear and unequivocal waiver, statutory or

otherwise, of the City’s immunity.

The trial court denied the City’s Rule 91a motion to dismiss on June 28, 2022.

This interlocutory appeal followed.

Discussion

In two issues, the City contends that the trial court erred in failing to dismiss

appellees’ tort and ultra vires claims because they lack any basis in law.

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A. Standard of Review

Texas Rule of Civil Procedure 91a allows a party to move for early dismissal

of a cause of action against it. See TEX. R. CIV. P. 91a; Ball v. City of Pearland, No.

01-20-00039-CV, 2021 WL 4202179, at *2 (Tex. App.—Houston [1st Dist.] Sept.

16, 2021, no pet.) (mem. op.). A trial court may dismiss a cause of action under Rule

91a if “it has no basis in law or fact.” TEX. R. CIV. P. 91a.1; Ball, 2021 WL 4202179,

at *2. “A cause of action has no basis in law if the allegations, taken as true, together

with inferences reasonably drawn from them, do not entitle the claimant to the relief

sought.” TEX. R. CIV. P. 91a.1; see Ball, 2021 WL 4202179, at *2.

We review a trial court’s decision on a Rule 91a motion to dismiss de

novo. Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d

651, 654 (Tex. 2020); City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016)

(per curiam); Malik v. GEICO Advantage Ins. Co., No. 01-19-00489-CV, 2021 WL

1414275, at *4 (Tex. App.—Houston [1st Dist.] Apr. 15, 2021, pet. denied) (mem.

op.). We look only to “the pleading of the cause of action, together with any pleading

exhibits” and do not consider any other part of the record. TEX. R. CIV. P. 91a.6; see

Sanchez, 494 S.W.3d at 724 (“Whether the dismissal standard is satisfied depends

‘solely on the pleading of the cause of action.’”). We construe the pleadings liberally

in favor of the plaintiff, look to the plaintiff’s intent, and accept as true the factual

allegations in the pleadings to determine if the cause of action has a basis in law or

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fact. Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex. App.—Houston [1st Dist.]

2016, no pet.) (citing Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied)).

B. Sovereign Immunity

Sovereign immunity and its counterpart for political subdivisions,

governmental immunity, protect the State and its political subdivisions, including

counties, cities, and municipalities, from lawsuits and liability for money damages.

See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The

City enjoys governmental immunity from suit and liability in the performance of its

governmental functions unless that immunity has been waived by the Legislature in

clear and unambiguous language. See Tooke v. City of Mexia, 197 S.W.3d 325, 342–

43 (Tex. 2006); TEX. GOV’T CODE § 311.034. “Absent a valid statutory or

constitutional waiver, trial courts lack subject-matter jurisdiction to adjudicate

lawsuits against municipalities.” Suarez v. City of Tex. City, 465 S.W.3d 623, 631

(Tex. 2015).

A plaintiff bears the burden to affirmatively demonstrate a trial court’s

jurisdiction by alleging a valid waiver of immunity, which may be either by

reference to a statute or by express legislative permission. See City of San Antonio

v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022); Tex. Dep’t of Transp. v. Jones, 8

S.W.3d 636, 638 (Tex. 1999). Immunity from suit may be asserted through a Rule

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91a motion to dismiss. See Sanchez, 494 S.W.3d at 724 (“The issue in

this Rule 91a dismissal proceeding is whether the Texas Tort Claims Act waives the

City’s immunity from suit[.]”); City of Houston v. Gonzales, No. 14-19-00768-CV,

2021 WL 2586242, at *1 (Tex. App.—Houston [14th Dist.] June 24, 2021, no pet.)

(mem. op.) (“Immunity from suit may be asserted through a plea to the jurisdiction

or another procedural vehicle such as a rule 91a motion.”).

C. Appellate Jurisdiction

As an initial matter, we must first address appellees’ assertion that this Court

lacks jurisdiction over the City’s interlocutory appeal.

This Court generally does not have jurisdiction over an appeal from an

interlocutory order denying a Rule 91a motion to dismiss. See Krause v. Mayes, 652

S.W.3d 880, 885 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (noting appellate

courts have jurisdiction to consider immediate appeals of interlocutory orders only

if expressly authorized by statute); see also Koenig v. Blaylock, 497 S.W.3d 595,

598 n.4 (Tex. App.—Austin 2016, pet. denied) (observing no statute permitted

interlocutory appeal from order denying Rule 91a motion). However, an order

denying a Rule 91a motion may be the subject of an interlocutory appeal if its

component rulings fall within the categories of appeals authorized by Section 51.014

of the Civil Practice and Remedies Code. Hung v. Davis, No. 01-20-00746-CV, 2022

WL 1008805, at *2 (Tex. App.—Houston [1st Dist.] Apr. 5, 2022, no pet.) (mem.

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op.) (citing TEX. CIV. PRAC. & REM. CODE § 51.014 (listing types of orders from

which interlocutory appeal is available)).

The City appealed the denial of its motion to dismiss under Section

51.014(a)(8), which permits an interlocutory appeal of the denial of a “plea to the

jurisdiction by a governmental unit as that term is defined in Section 101.001.” TEX.

CIV. PRAC. & REM. CODE § 51.014(a)(8). For purposes of our appellate jurisdiction,

it is not significant that the City sought dismissal of appellees’ claims against it by

filing a motion to dismiss rather than a plea to the jurisdiction, as referenced

in Section 51.014(a)(8). See Hung, 2022 WL 1008805, at *2. The Texas Supreme

Court has recognized that “an appeal may be taken from orders denying an assertion

of immunity . . . regardless of the procedural vehicle used.” Id. (quoting Austin State

Hosp. v. Graham, 347 S.W.3d 298, 301(Tex. 2011)).

Here, the only basis for dismissal asserted in the City’s Rule 91a motion was

lack of jurisdiction premised on governmental immunity. See TEX. CIV. PRAC. &

REM. CODE § 101.021. The Texas Supreme Court and the courts of appeals,

including this one, have held that the denial of a motion to dismiss based upon the

assertion of governmental immunity is the proper subject of an interlocutory appeal

under Section 51.014(a) of the Civil Practices & Remedies Code. See Austin State

Hosp., 347 S.W.3d at 301; Hung, 2022 WL 1008805, at *2–3; Krause, 652 S.W.3d

at 885; San Jacinto River Auth. v. Hewitt, No. 14-18-00479-CV, 2019 WL 2939971,

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at *1 (Tex. App.—Houston [14th Dist.] July 9, 2019, no pet.) (mem. op.); City of

Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.).

Thus, although this appeal arises from a Rule 91a motion and not a plea to the

jurisdiction, this Court has appellate jurisdiction. See Thomas v. Long, 207 S.W.3d

334, 339 (Tex. 2006) (“To be entitled to an interlocutory appeal, section 51.014(a)(8)

requires the denial of a jurisdictional challenge.”); see also Lazarides v. Farris, 367

S.W.3d 788, 796–97 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (concluding

when record includes order denying motion including challenge to trial court’s

jurisdiction, interlocutory appeal may be taken, irrespective of chosen procedural

vehicle). We next consider the merits of the trial court’s ruling.

D. Analysis

The City contends that the trial court erred in denying its Rule 91a motion to

dismiss because the TTCA does not waive the City’s immunity for the torts and ultra

vires claim asserted in appellees’ petition. Thus, it argues, appellees’ claims have no

reasonable basis in law and must be dismissed.

1. Negligence Claims

In their original petition, appellees asserted two counts of negligence per se.

Count 1 alleged that the City violated Article 55.04 of the Texas Code of Criminal

Procedure1 when its personnel released Fowler’s expunged criminal records to DPS.

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Section 1 of Article 55.04 provides:
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Count 2 alleged that the City violated Penal Code Section 39.032 “by interfering with

HMS’s commercial contracts, [] threatening to wrongfully arrest [Fowler], []

undermining HMS’s apparent authority granted to it under color of contract, []

offering legal opinions, and [] generally obstructing HMS’s performance of its

duties.” Appellees also asserted two counts of negligent training or supervision.

Count 1 alleged that the City breached its duty owed to Fowler to hire competent

personnel and train and supervise them concerning wrongful interference in private

contractual matters, and that the City’s personnel interfered with [HMS]’s

A person who acquires knowledge of an arrest while an officer or
employee of the state or of any agency or other entity of the state or
any political subdivision of the state and who knows of an order
expunging the records and files relating to that arrest commits an
offense if he knowingly releases, disseminates, or otherwise uses the
records or files.

TEX. CODE CRIM. PROC. Art. 55.04, § 1.
2
Section 39.03 provides, in relevant part:

(a) A public servant acting under color of his office or employment
commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest,
detention, search, seizure, dispossession, assessment, or lien
that he knows is unlawful; [or]

(2) intentionally denies or impedes another in the exercise or
enjoyment of any right, privilege, power, or immunity,
knowing his conduct is unlawful[.]

TEX. PENAL CODE § 39.03.
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commercial endeavors and contracts which proximately caused pecuniary damages

to appellees. Count 2 alleged that the City breached its duty owed to Fowler to hire

competent personnel and train and supervise them about the laws concerning

expunction, and the City’s personnel breached the duty when they divulged

expunged information to another state agency, which proximately caused damages

to appellees.

All tort theories alleged against a Texas governmental entity are presumed to

be under the TTCA. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,

659 (Tex. 2008). Section 101.021 of the TTCA provides that 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.

TEX. CIV. PRAC. & REM. CODE § 101.021. Neither appellees’ negligence per se

claims nor their negligent supervision or training claims implicate Section 101.021’s

limited waiver of immunity—that is, the claims do not allege property damage,
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personal injury, or death caused by a government employee’s negligent use of a

motor vehicle or motor-driven equipment, or a premises liability claim caused by a

condition or use of tangible personal or real property resulting in personal injury or

death. See id.

Appellees respond that the City’s employees voluntarily engaged in non-

governmental, proprietary acts for which the City’s immunity is waived. This

argument misses the mark. While it is true that Section 101.0215 of the TTCA sets

forth a nonexclusive list of activities categorized as governmental functions, it “does

not automatically itself operate as an independent waiver of sovereign immunity.”

Hale v. City of Bonham, 477 S.W.3d 452, 458 (Tex. App.—Texarkana 2015, pet.

denied); City of Mission v. Cantu, 89 S.W.3d 795, 802 (Tex. App.—Corpus Christi–

Edinburg 2002, no pet.). Instead, the plaintiff must demonstrate that its claims “fall

within the areas of liability provided by section 101.021 of the Act.” Hale, 477

S.W.3d at 458; City of Houston v. Nicolai, 539 S.W.3d 378, 387 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (noting that to hold municipality liable

pursuant to Section 101.0215, liability must still arise out of one of three general

areas of waiver enumerated in Section 101.021); Cantu, 89 S.W.3d at 803 (“Thus,

even though it is established that a claim arises from a governmental function listed

in section 101.0215 and the [TTCA] applies, the claim made must still fall within

the scope of section 101.021 in order for a municipality to be held liable.”); City of

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Houston v. Rushing, 7 S.W.3d 909, 914 (Tex. App.—Houston [1st Dist.] 1999, pet.

denied) (“However, to hold a municipality liable pursuant to section 101.0215, the

liability must still arise out of one of the three specific areas of waiver listed [in

section 101.021].”); Bellnoa v. City of Austin, 894 S.W.2d 821, 826 (Tex. App.—

Austin 1995, no writ) (stating “we must first determine whether the alleged harm

meets the conditions of section 101.021”). Thus, appellees had to demonstrate that

the City’s alleged misconduct in transmitting Fowler’s expunged records, interfering

with appellees’ security contracts, and failing to properly train or supervise its

personnel fell within Section 101.021’s waiver provisions. Having failed to do so,

appellees have not pleaded a valid waiver of the City’s immunity for their negligence

claims.

2. Tortious Interference with Contract and Conspiracy Claims

Appellees also asserted claims against the City for tortious interference with

contract and conspiracy. These are intentional torts for which the TTCA provides no

waiver of immunity. See TEX. CIV. PRAC. & REM CODE § 101.057(2) (“This chapter

does not apply to a claim . . . arising out of assault, battery, false imprisonment, or

any other intentional tort[.]”); City of Watauga v. Gordon, 434 S.W.3d 586, 589

(Tex. 2014) (explaining TTCA’s “limited waiver does not apply

to intentional torts”); Jaramillo v. City of Tex. City, No. 01-20-00654-CV, 2022 WL

363271, at *4 (Tex. App.—Houston [1st Dist.] Feb. 8, 2022, no pet.) (mem. op.)

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(noting conspiracy is intentional tort to which TTCA does not apply); City of Hous.

v. Guthrie, 332 S.W.3d 578, 593 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)

(stating tortious interference is intentional tort for which TTCA does not waive

immunity); Ethio Exp. Shuttle Serv., Inc. v. City of Hous., 164 S.W.3d 751, 758 (Tex.

App.—Houston [14th Dist.] 2005, no pet.) (concluding plaintiff’s claim for tortious

interference with contract and various claims for conspiracy were intentional torts

for which City’s immunity was not waived under TTCA). Appellees have not

established a waiver of sovereign immunity for their tortious interference with

contract and conspiracy claims.

3. Ultra Vires Claim

Appellees asserted an ultra vires claim alleging that unknown personnel of

the City and HPD acted without authority by divulging Fowler’s expunged criminal

records, causing HMS to lose commercial contracts, and harassing and threatening

Fowler and HMS personnel.

In certain narrow instances, a suit against a government official can proceed

even in the absence of a waiver of immunity if the official’s actions are ultra vires.

Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 344 (Tex.

2019); Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017) (citing City of El Paso v.

Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). “An ultra vires action requires a

plaintiff to ‘allege, and ultimately prove, that the officer acted without legal authority

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or failed to perform a purely ministerial act.’” Hall, 508 S.W.3d at 238 (citing

Heinrich, 284 S.W.3d at 372). A government officer with some discretion to

interpret and apply a law may nevertheless act without legal authority—and thus

act ultra vires—if the officer exceeds the bounds of his granted authority or if his

acts conflict with the law itself. Id.; Hous. Belt & Terminal Ry. Co. v. City of Hous.,

487 S.W.3d 154, 164 (Tex. 2016) (“[G]overnmental immunity only extends to those

government officers who are acting consistently with the law, which includes those

who act within their granted discretion.”). “Ministerial acts” are those “where the

law prescribes and defines the duties to be performed with such precision and

certainty as to leave nothing to the exercise of discretion or judgment.” Hall, 508

S.W.3d at 238 (quoting Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex.

2015)). The governmental entities themselves, however, remain immune from suit

because unlawful acts of officials are not acts of the State. Tex. Dep’t of Transp. v.

Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per curiam) (citing Heinrich, 284 S.W.3d

at 372–73). Thus, suits complaining of ultra vires actions may not be brought against

a governmental unit, but must be brought against the allegedly responsible

government actor in his official capacity. Hall, 508 S.W.3d at 240 (citing Patel v.

Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 76 (Tex. 2015)); Emmett, 459

S.W.3d at 587.

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 Here, appellees have sued the City rather than the relevant government actors

in their official capacity. See Heinrich, 284 S.W.3d at 372–73 (clarifying that

governmental entities themselves are not proper parties to ultra vires suit; instead,

plaintiff must sue relevant officers in their official capacities). Therefore, appellees

have not asserted a proper ultra vires claim. See Hall, 508 S.W.3d at 239; Emmett,

459 S.W.3d at 587.

Taking their allegations as true, together with inferences reasonably drawn

from them, appellees failed to allege any basis on which to assert a waiver of the

City’s immunity to their claims. See TEX. R. CIV. P. 91a.1. The trial court erred in

denying the City’s Rule 91a motion to dismiss. Accordingly, we sustain the City’s

issues.

Conclusion

We reverse the trial court’s June 28, 2022 order denying the City’s Rule 91a

motion to dismiss and render judgment dismissing appellees’ claims.

Amparo Guerra
Justice

Panel consists of Justices Landau, Countiss, and Guerra.

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