Opinion
03-22-00489-CV
08-30-2023
Conny B. Hatch, III, Appellant v. University of Texas at Austin; Sally R. Moore; Mary L. Riddle; Dave Stevens; Dean Hansen; and Ross A. Brennan, J.D., Appellees
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-005628, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Smith
MEMORANDUM OPINION
Darlene Byrne, Chief Justice
Appellant Conny B. Hatch, III, challenges the district court's judgment granting appellees' plea to the jurisdiction and dismissing all his causes of action. For the reasons below, we affirm the trial court's judgment.
BACKGROUND
Hatch is an employee of the University of Texas at Austin (the "University"). On September 20, 2021, Hatch sued the University and several University employees (collectively, the "Defendants"), asserting various causes of action that he alleges arose from several workplace incidents. In his live pleading, those causes of action included breach of contract, defamation, retaliation under Chapter 21 of the Texas Labor Code, and violations of the Texas Whistleblower Act and the Texas False Claims Act.
Defendants filed a plea to the jurisdiction, asserting among other grounds that Hatch's claims are barred by sovereign immunity and that he failed to exhaust his administrative remedies for his claims under Chapter 21 and under the Whistleblower Act. After a hearing, the trial court granted the plea in its entirety and dismissed all of Hatch's claims against Defendants. This timely appeal followed.
STANDARD OF REVIEW
The trial court's ruling on a plea to the jurisdiction is reviewed de novo. Grossman v. Wolfe, 578 S.W.3d 250, 255 (Tex. App.-Austin 2019, pet. denied). "A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction." University of Tex. Med. Branch at Galveston v. Kai Hui Qi, 402 S.W.3d 374, 379-80 (Tex. App.-Houston [14th Dist.] 2013, no pet.). "The burden is on the plaintiff to affirmatively demonstrate the trial court's jurisdiction." Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). When the plea to the jurisdiction challenges sufficiency of the pleadings, "we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Houston Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009)). We construe the pleadings liberally in the plaintiff's favor and look to their intent. Id. "Only if the pleadings affirmatively negate jurisdiction should the plea to the jurisdiction be granted without affording the plaintiffs an opportunity to replead." Id. (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)).
Sovereign immunity protects the State of Texas and its agencies from suit and liability, absent a clear and unambiguous waiver of immunity by the Legislature. Nazari v. State, 561 S.W.3d 495, 500 (Tex. 2018); see also Grossman, 578 S.W.3d at 258. The assertion of sovereign immunity implicates the trial court's jurisdiction and therefore may be asserted in a plea to the jurisdiction. Houston Belt, 487 S.W.3d at 160. When, as here, a governmental defendant challenges jurisdiction on the basis of immunity, the plaintiff's burden of affirmatively demonstrating jurisdiction includes establishing a valid waiver of immunity. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019).
The parties do not dispute that the University is a state agency protected by sovereign immunity. See Tex. Gov't Code § 572.002(10)(B) (including university systems in definition of "State agency"); Sissom v. University of Tex. High Sch., 927 F.3d 343, 348 (5th Cir. 2019) ("The University of Texas at Austin is "inarguably a state agency' that is entitled to sovereign immunity." (quoting Saenz v. Univ. Interscholastic League, 487 F.2d 1026, 1027 (5th Cir. 1973)).
DISCUSSION
Liberally construing Hatch's briefing, he has asserted two issues on appeal challenging the trial court's grant of the plea to the jurisdiction. First, Hatch describes various causes of action under 42 U.S.C. § 1981, which we interpret as asserting that the trial court erred in granting the plea to the jurisdiction as to those claims. Second, Hatch references the Texas Tort Claims Act (TTCA), ostensibly asserting that the trial court erred in granting the plea to the jurisdiction because the University had waived its immunity pursuant to the TTCA.
We construe pro se filings liberally and with patience "so as to obtain a just, fair and equitable adjudication of the parties' rights." Housing Auth. of City of Austin v. Elbendary, 581 S.W.3d 488, 491 n.1 (Tex. App.-Austin 2019, no pet.) (quoting Veigel v. Texas Boll Weevil Eradication Found., 549 S.W.3d 193, 195 n.1 (Tex. App.-Austin 2018, no pet.)). "However, pro se litigants must comply with the same rules and standards as those represented by attorneys." Id.
As to the first issue, Hatch spends almost all of his briefing asserting various causes of action under 42 U.S.C. § 1981. Section 1981 provides for the protection of equal rights under the law from "impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c); see also University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 354-55 (2013) (explaining that Section 1981 prohibits "not only racial discrimination but also retaliation against those who oppose it"). However, neither his original petition nor any of his amended petitions alleged a claim under Section 1981. Hatch cannot raise new issues or claims for the first time on appeal. See Tex. R. App. P. 33.1(a)(1) (requiring that issue must have been raised to trial court "by a timely request, objection, or motion"); Morrell Masonry Supply, Inc. v. Perez, No. 01-13-00887-CV, 2014 WL 3843519, at *3 (Tex. App.- Houston [1st Dist.] Aug. 5, 2014, no pet.) (mem. op.) (explaining that plaintiff cannot assert new claim on appeal to avoid summary judgment). We overrule his first issue.
In his second issue, Hatch makes a passing reference to the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code §§ 101.001-.109. The TTCA provides a limited waiver of immunity for certain tort claims against governmental units. Tex. Civ. Prac. & Rem. Code § 101.021; see also Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.-Houston [14th Dist.] 2014, no pet.). However, beyond a passing reference to the TTCA, including the statutory provision concerning limitations on the amount of damages, Tex. Civ. Prac. & Rem. Code § 101.023, Hatch fails to provide any "substantive legal analysis of the legal issues presented" as to whether he has sufficiently alleged a valid waiver under the TTCA, see Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931-32 (Tex. App.-Houston [14th Dist.] 2008, no pet.); see also Tex. R. App. P. 38.1(i); Housing Auth. of City of Austin v. Elbendary, 581 S.W.3d 488, 491 n.1 (Tex. App.-Austin 2019, no pet.) ("However, pro se litigants must comply with the same rules and standards as those represented by attorneys."); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no pet.) (explaining that Rule 38.1 "is not satisfied by merely uttering brief conclusory statements unsupported by legal citations"). Furthermore, the only tort claim asserted by Hatch in his pleadings was defamation, which is an intentional tort not covered by the TTCA. See Tex. Civ. Prac. & Rem. Code § 101.057(2) (excluding "intentional tort[s]" from TTCA); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.-Houston [1st Dist.] 1995, no writ) (including defamation as intentional tort excluded from TTCA waiver). Accordingly, even if we reached the merits of the issue, we would conclude that the trial court properly found that Hatch has failed to demonstrate a valid waiver of immunity under the TTCA. Consequently, the trial court did not err in granting the plea to the jurisdiction on his defamation claim. See Grossman, 578 S.W.3d at 258.
Nor would this defamation cause of action survive if directed at the individual defendants who are University employees. See Tex. Civ. Prac. & Rem. Code § 101.106(e) (requiring dismissal of claims against governmental unit's employees upon motion by governmental unit if suit is brought under TTCA "against both a governmental unit and any of its employees"); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) ("[A]ll 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 Tex. Civ. Prac. & Rem. Code § 101.106(e)).
We therefore overrule Hatch's second issue.
CONCLUSION
For the above reasons, we affirm the trial court's judgment.
Affirmed.