Oscar Pardo and Ricardo Eduardo Perez v. Rafael Iglesias III

Motion for En Banc Reconsideration Failed and Dissenting Opinion from
Failure of Motion for En Banc Reconsideration filed June 27, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00338-CV

OSCAR PARDO AND RICARDO EDUARDO PEREZ, Appellants
V.
RAFAEL IGLESIAS III, Appellee

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2016-39532

DISSENTING OPINION FROM FAILURE OF MOTION FOR EN BANC
RECONSIDERATION

Appellee, Rafael Iglesias III, seeks en banc reconsideration of a panel
opinion that (1) reversed the trial court’s denial of Appellant officers’ motion to
dismiss pursuant to the Texas Tort Claims Act, and (2) rendered judgment in
Appellants’ favor. The panel’s opinion materially departs from the uniformity of
this court’s jurisprudence concerning the (1) rendering of judgment without
jurisdiction, (2) avoidance of surplusage in statutory interpretation, and (3)
application of Texas Civil Practice and Remedies Code section 101.106(f) once we
determine the three-part test therein is satisfied. Therefore, I would grant en banc
reconsideration to maintain the uniformity of this court’s decisions and address the
extraordinary circumstances created when our court dismissed Iglesias’s claim
despite lacking jurisdiction to do so. See Tex. R. App. Proc. 42.1(c).
I. Relevant Statutory Language
This appeal centers on the application of Texas Civil Practice and Remedies
Code section 101.106(f). That statute provides:

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.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).

II. Jurisdiction
The trial court’s denial of Appellants’ motion to dismiss is an interlocutory
order; thus, this court lacks jurisdiction to hear Appellants’ appeal unless a statute
explicitly confers appellate jurisdiction. See Chang v. Lin, No. 14-16-00805-CV,
2016 WL 7234469, at *1 (Tex. App.—Houston [14th Dist.] Dec. 13, 2016, no pet.)
(mem. op.) (per curiam) (citing Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.
1998) (per curiam)). The Texas Tort Claims Act waives sovereign immunity in
three areas only: “use of publicly owned automobiles, premises defects, and
injuries arising out of conditions or use of property.” Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004) (citations omitted). One of

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Iglesias’s claims against Appellant officers was for assault.
Assault is an intentional tort and is not a use of publicly owned automobiles,
a premises defect, or an injury arising out of conditions or use of property.
Therefore, no statute provides authority to hear Appellants’ interlocutory appeal
concerning the denial of a motion to dismiss Iglesias’s assault claim because it
could not have been brought under the Texas Tort Claims Act. See Tex. Civ. Prac.
& Rem. Code § 101.057(2) (“This chapter does not apply to a claim . . . arising out
of assault . . . or any other intentional tort[.]”); Delaney v. Univ. of Houston, 835
S.W.2d 56, 59 (Tex. 1992) (holding the Texas Tort Claims Act does not cover
assault). Therefore, we lack jurisdiction to hear Appellants’ arguments against
Iglesias’s assault claim (regardless of how they are framed) because it could not
have been brought against the City of Houston under the Texas Tort Claims Act
and there was no waiver of governmental immunity from suit. This is fundamental
error.
III. Surplusage
The panel’s presumption that Iglesias’s assault claim must have been
brought under the Texas Tort Claims Act also runs afoul of this court’s uniform
jurisprudence recognizing the well-established rule that we are to “consider the
statute as a whole, giving effect to each provision so that none is rendered
meaningless or mere surplusage.” In re J.R., 652 S.W.3d 508, 513 (Tex. App.—
Houston [14th Dist.] 2022, pet. denied) (quoting TIC Energy & Chem., Inc. v.
Martin, 498 S.W.3d 68, 74 (Tex. 2016)); see also Duncan House Charitable Corp.
v. Harris Cnty. Appraisal Dist., No. 14-20-00461-CV, 2021 WL 5831399, at *2
(Tex. App.—Houston [14th Dist.] Dec. 9, 2021, pet. filed) (mem. op.); Harris
Cnty. Appraisal Dist. v. IQ Life Scis. Corp., 612 S.W.3d 93, 97 (Tex. App.—
Houston [14th Dist.] 2020, pet. denied) (plurality op.); Matter of A.J.F., 588
S.W.3d 322, 335 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Guardianship
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of A.S.K., No. 14-15-00588-CV, 2017 WL 3611845, at *2 (Tex. App.—Houston
[14th Dist.] Aug. 22, 2017, pet. denied) (mem. op.). The panel’s dismissal of
Iglesias’s assault claim case required it to convert an intentional tort that is
explicitly exempted from the Texas Tort Claims Act into a claim that inexplicably
“could have been brought” pursuant to non-existent statutory language; this
outcome is foreclosed as a matter of law. See Tex. Civ. Prac. & Rem. Code §
101.057(2) (“This chapter does not apply to a claim . . . arising out of assault . . . or
any other intentional tort[.]”); Delaney, 835 S.W.2d at 59. The panel’s conversion
of Iglesias’s intentional assault claim into one that “could have been brought”
under the Texas Tort Claims Act means that (under the panel’s reasoning) any
cause of action brought against government actors in state courts is effectively a
claim under the Texas Tort Claims Act despite the availability of other statutory
remedies (e.g., 42 U.S.C. § 1983); this impermissibly renders the phrase “if it
could have been brought under this chapter against the governmental unit” inert
surplusage contrary to this court’s ruling in In re J.R. See In re J.R., 652 S.W.3d at
513.

IV. Official Capacity
Finally, the panel completed 101.106(f)’s three-part test, concluded it
applied, then assumed said application automatically warranted dismissal. That is
not what the plain language of 101.106(f) says. Instead (and once the three-part
test has been satisfied), “the suit is considered to be against the employee in the
employee’s official capacity only.” See Tex. Civ. Prac. & Rem. Code Ann. §
101.106(f). Assuming arguendo that the three-part test has been satisfied (as the
majority concluded), then Iglesias’s suit is against Appellants in their official
capacities only. See id.; Brown v. Robinson, No. 14-17-00754-CV, 2019 WL
1339651, at *8 (Tex. App.—Houston [14th Dist.] Mar. 26, 2019, no pet.) (mem.

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op.) (holding that when the three-part test is satisfied, the plaintiff’s cause of action
is considered to be against the government official in his or her official capacity
only).
An official capacity claim is a claim against the city. See Franka v.
Velasquez, 332 S.W.3d 367, 382 (Tex. 2011) (“Under Texas law, a suit against a
government employee in his official capacity is a suit against his government
employer.”). Therefore, the panel’s dismissal of Iglesias’s claim was contrary to
this court’s opinions concerning the application of 101.106(f)’s plain language.
See Rodriguez v. Duvall, No. 14-20-00402-CV, 2022 WL 619710, at *3 (Tex.
App.—Houston [14th Dist.] Mar. 3, 2022, no pet.) (mem. op.) (“Under section
101.106(f) of the Act, the legislature mandated that a governmental unit—not the
government employee—must be sued for a governmental employee’s work-related
tortious conduct.”) (citing Garza v. Harrison, 574 S.W.3d 389, 394 (Tex. 2019)). I
would grant en banc review to correct this extraordinary error and to maintain the
uniformity of this court’s decisions concerning the application of 101.106(f).
V. Conclusion
The panel’s opinion materially departs from this court’s jurisprudence
because it (1) rendered judgment concerning Iglesias’s assault claim despite the
absence of subject matter jurisdiction to do so, (2) caused statutory language to
become mere surplusage, and (3) misapplied the plain language of Texas Civil
Practice and Remedies Code section 101.106(f). Instead of following this court’s
relevant holdings, the panel decided that (1) the City could not be sued for
Appellants’ alleged assault under the Texas Tort Claims Act, (2) because the City
could not be sued, Appellants could not be sued either, and (3) because Appellants
could not be sued, they were therefore entitled to dismissal.
The panel’s errors are readily understandable. Iglesias’s pleadings are not a
model of clarity and Appellants failed to file any special exceptions that could have
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clarified the viable source of Iglesias’s assault claim. Notwithstanding these
mutual errors, this court’s jurisprudence clearly prohibits the granting of appellate
relief when we lack subject matter jurisdiction. Therefore, we should grant en
banc reconsideration to maintain the uniformity of this court’s decisions and to
address the extraordinary errors that were properly disregarded by the trial court.

/s/ Meagan Hassan
Justice

En Banc Court consists of Chief Justice Christopher and Justices Wise, Jewell,
Bourliot, Zimmerer, Spain, Hassan, and Wilson. Justice Hassan authored the
Dissenting Opinion from Failure of Motion for En Banc Reconsideration in which
Justices Bourliot, Zimmerer, and Spain joined. Justice Poissant did not participate.

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