Summary
stating that " [t]he practical effect of is that a plaintiff is made to sue the governmental entity"
Summary of this case from Batiste v. City of BeaumontOpinion
No. EP-04-CA-056-PRM.
June 14, 2005
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PURSUANT TO TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION 101.106
On this day, the Court considered Defendant Gilbert Sanchez's ("Sanchez") "Motion to Dismiss Pursuant to Texas Civil Practice Remedies Code Section 101.106" ("Motion to Dismiss"), filed on August 31, 2004, and Plaintiff Yolanda Flores' and Plaintiff Maria Esther Mora's (collectively "Plaintiffs") "Response in Opposition to Defendant's Motion to Dismiss Pursuant to Texas Civil Practice Remedies Code Section 101.106." In his Motion to Dismiss, Sanchez requests that the Court dismiss Plaintiff's state law claims pursuant to Texas Civil Practice and Remedies Code § 101.106. After due consideration, the Court is of the opinion that Sanchez's Motion to Dismiss should be granted for the reasons set forth below.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Sanchez is the District Clerk for the County of El Paso. Sanchez took office on January 1, 2003. Plaintiff Yolanda Flores was hired as Chief Deputy to the District Clerk on February 20, 2001, and served in that position until January 2, 2003. Plaintiff Maria Esther Mora became Office Manager of the District Clerk's Office in October, 2001, and served in that position until January 2, 2003.
Yolanda Flores began her employment with the County of El Paso on June 19, 1994 as a data entry clerk. In 1997, she was hired by the District Clerk's Office as a computer systems support analyst, before obtaining the position of Chief Deputy.
Plaintiff Mora began her employment with the County of El Paso on December 4, 1994, as a court clerk assigned to one of the district courts. She subsequently became a supervisor and then a system analyst within the District Clerk's Office before being promoted to Office Manager in 2001.
In January 2002, Plaintiffs' superior, former District Clerk, Edie Rubalcaba, decided not to seek re-election. That same month Plaintiff Mora entered the race for District Clerk of El Paso County. Plaintiff Flores assisted in Plaintiff Mora's campaign efforts. On March 12, 2002, a primary election was held for the District Clerk position to determine the Democratic candidate for District Clerk in the November 2002 general election. Sanchez and another candidate, Dolores Baca, obtained enough votes to proceed to a runoff election on April 9, 2002 — Plaintiff Mora did not. Thereafter, Plaintiff Mora supported Sanchez's candidacy for District Clerk.
Sanchez was elected District Clerk of El Paso County on November 5, 2002. On January 2, 2003, Sanchez chose not to deputize Plaintiffs to resume their former positions, effectively terminating their employment. Sanchez contends that after assuming office he discovered numerous office documents were missing and office computer files had been deleted. On January 3, 2003, Sanchez filed a complaint against Plaintiffs with the El Paso County Sheriff's Office. Therein, he stated that he had been told by staff that records tampering was being conducted by some disgruntled employees. He stated that he, along with his new Chief Deputy Clerk Irma Keith, searched through the files of the District Clerk's Office and discovered that hard copy and computer files related to the operation of the Office were missing. He stated his belief that the hard copies were shredded and the computer files were deleted by the disgruntled employees in order to make his job impossible. He specifically identified Plaintiff Flores and Plaintiff Mora as two of the employees involved in the tampering or destruction of files and/or documents.
Plaintiffs allege that as early as November 8, 2002, Sanchez informed the Plaintiffs that they would not be deputized.
Sanchez stated that he suspected Supervisor Miguel Fan of document tampering, as he fired Fan on January 2, 2003 for allegedly shredding documents. Sanchez also stated that he suspected James Fashing of the Domestic Relations Office of document tampering, as Sanchez had been informed from personnel that Fashing had been working on Fan and Plaintiffs' computers in the District Clerk's Office.
On January 9, 2003, the El Paso Times published an article attributing to Sanchez certain allegations about files being destroyed or tampered with in the District Clerk's Office. The El Paso Times published a similar article on January 10, 2003 as well. A warrant for the arrest of Plaintiffs was subsequently issued. On March 13, 2003, Plaintiff Flores and Plaintiff Mora were arrested and booked into the El Paso County Jail, on a charge of tampering with government documents. On July 29, 2003, the El Paso County District Attorney's Office declined to prosecute the charge against Plaintiffs.
At no time have Plaintiffs identified the information Sanchez gave to the newspaper, if any, or what exact statements Sanchez made regarding Plaintiffs within the January 9th article.
On December 23, 2003, Plaintiffs filed suit against Sanchez alleging several state causes of action and an action for violation of Plaintiffs' First Amendment rights pursuant to 42 U.S.C. § 1983. On February 9, 2004, Sanchez removed the case to federal court. On March 26, 2004, Plaintiffs filed an amended complaint suing Sanchez in his individual capacity, and his official capacity as District Clerk, for defamation, malicious prosecution, wrongful termination, and negligent use of tangible property under Texas law, and violation of Plaintiffs' First Amendment rights under federal law. On August 31, 2004, Sanchez filed the instant Motion to Dismiss seeking dismissal of Plaintiffs' state law claims against him in his individual capacity pursuant to Texas Civil Practice and Remedies Code § 101.106.
II. DISCUSSION
Texas Civil Practice and Remedies Code § 101.106 was recently amended, effective September 1, 2003. Plaintiffs filed suit on December 23, 2003, after the statute's effective date. Section 101.106, entitled "Election of Remedies," requires a plaintiff to make an irrevocable election between suit against a governmental entity and the government employee responsible for injury to the plaintiff. The statute, in pertinent part states as follows:
§ 101.106 Election of Remedies
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
TEX. CIV. PRAC. REM. CODE § 101.106(a)-(e) (2004).
Consequently, suit against the governmental entity precludes suit or recovery against the individual employee. § 101.106(a). The converse is also true unless the governmental entity consents to suit. § 101.106(b). If suit is filed against both an employee and the governmental entity, the employee is entitled to dismissal upon a motion filed by the government. § 101.106(e). The practical effect of the code section is that a plaintiff is made to sue the governmental entity. 19 WILLIAM V. DORSANEO III, TEXAS LITIGATION GUIDE § 293.16(3)(a) (2005).
In the instant case, Plaintiffs attempt to assert four state law claims against Sanchez in both his official and individual capacity. "[O]fficial-capacity suits `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Hafer v. Melo, 502 U.S. 21, 25 (1991) (citations omitted). Thus, "[a] suit against an official in his official capacity is not a suit against the official, but is rather a suit against the governmental entity he represents." Hidalgo County v. Gonzalez, 128 S.W.3d 788, 796 (Tex.App.-Corpus Christi 2004, no pet.) (citations omitted); see also Bennett v. Pippen, 74 F.3d 578, 584 (5th Cir. 1996) (noting that a suit against a county official in his official capacity is a suit against the county "directly in everything but name.") (citation omitted). Therefore, Plaintiffs' state law claims against Sanchez in his official capacity are claims against El Paso County, a governmental entity within the meaning of § 101.106.
Plaintiffs filed a Motion for Leave to file a second amended complaint, which would eliminate all state law claims against Sanchez in his official capacity and dismiss Plaintiffs' fifth claim of negligent use of tangible property. It is clear that Plaintiffs seek to amend their complaint to avoid application of § 101.106. This attempt is unavailing. Pursuant to § 101.106, a plaintiff's initial decision regarding what parties to sue under the Texas Tort Claims Act constitutes an irrevocable election of remedies. Once a plaintiff makes such an election, the decision cannot be rescinded by subsequent amendments to the complaint. Villasan v. O'Rourke, No. 09-04-409 CV, 2005 Tex. App. LEXIS 4022, at *8 (Tex.App.-Beaumont May 26, 2005, no pet.) (unpublished opinion). Plaintiffs made an irrevocable decision to sue the governmental entity, the County of El Paso, by suing Sanchez in his official capacity. Plaintiffs must now abide by their decision and its consequences under § 101.106.
The Court recognizes that some Texas state cases require a plaintiff to explicitly name the governmental entity they are suing in order to fall under the purview of the Texas Tort Claims Act, rather than suing an official in his official capacity. See e.g., Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App. — Houston [1st Dist.] 1998, no pet.); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex.App.-Houston [1st Dist.] 1994, no writ); Huntsberry v. Lynaugh, 807 S.W.2d 16, 17 (Tex.App.-Tyler 1991, no writ); see also TEX. CIV. PRAC. REM. CODE § 101.102(b) ("The pleadings of the suit must name as defendant the governmental unit against which liability is to be established."). However, this formalistic requirement appears limited to cases involving pro se prisoner plaintiffs attempting to sue individual correctional employees under the Texas Tort Claims Act. Thus, the foregoing cases, and their progeny, are inapposite to the instant case. The Court is of the opinion that Plaintiffs' pleadings stating claims against Sanchez in his official capacity as District Clerk of El Paso County, Texas sufficiently name a governmental unit, the County of El Paso, for purposes of compliance with § 101.102(b). Therefore, Plaintiffs' claims against Sanchez in his official capacity essentially name the County of El Paso as a defendant in this case. Thus, Plaintiffs' state law claims against Sanchez are governed by the provisions of the Texas Tort Claims Act.
In effect, Plaintiffs attempt to maintain suit against Sanchez the individual employee, and Sanchez the public official, and hence El Paso County, simultaneously. However, a simultaneous suit against a governmental entity and its employee is precluded by § 101.106(e). See Hernandez v. Duncanville Sch. Dist., No. 3:04-CV-2028-BH (B), 2005 U.S. Dist. LEXIS 5090, at *16-17 (N.D. Tex, Mar. 29, 2005) (holding that where a plaintiff filed suit against a school district and its employees for the same claims, § 101.106(e) mandated dismissal of the claims against the employees in their individual capacities); Barnes v. Barnes, No. 03-CV-231-C, 2004 U.S. Dist LEXIS 23180, at *23 (N.D. Tex., Mar. 30, 2004) (holding that where a plaintiff filed suit against a municipality, its police department, and police department employees, § 101.106(e) mandated dismissal of the plaintiffs' tort claims against the employees).
The El Paso County Attorney's Office, representing Sanchez, has timely filed a motion to dismiss Sanchez, as a defendant in his individual capacity, pursuant to § 101.106. Thus, the individual employee, Sanchez in his individual capacity, must be dismissed from this cause. At this point, Plaintiffs may only seek relief for their state law claims from the governmental entity — El Paso County through suit against Sanchez in his official capacity. Therefore, Plaintiffs' state law claims against Sanchez in his individual capacity for defamation, malicious prosecution, wrongful termination, and negligent use of tangible property must be dismissed with prejudice. See Hernandez, No. 3:04-CV-2028-BH (B), 2005 U.S. Dist. LEXIS 5090, at *19 n. 7 (state law claims against individual government employees in contravention of § 101.106 "are properly dismissed with prejudice") (citation omitted).
III. CONCLUSION
Based on the foregoing analysis of facts and legal principles, the Court concludes that § 101.106 mandates dismissal of Plaintiffs' state law claims against Sanchez in his individual capacity.
Accordingly, IT IS ORDERED that Defendant Gilbert Sanchez's "Motion to Dismiss Pursuant to Texas Civil Practice Remedies Code Section 101.106" is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' state law claims against Sanchez in his individual capacity are DISMISSED WITH PREJUDICE.
Plaintiffs' remaining claims allege defamation, malicious prosecution, wrongful termination, and negligent use of tangible property against Sanchez in his official capacity. Plaintiffs also allege a First Amendment violation, under 42 U.S.C. § 1983, against Sanchez in both his individual and official capacity. The Court will address Plaintiffs' remaining claims in a forthcoming Memorandum Opinion and Order.