Opinion issued March 21, 2013.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-12-00315-CV
                          ———————————
                     MYLES HOPKINS, APPELLANT
                                      V.
                     W.A. STRICKLAND, APPELLEE


                   On Appeal from the 23rd District Court
                         Brazoria County, Texas
                       Trial Court Cause No. 64942

                        MEMORANDUM OPINION

      Myles Hopkins, a former police chief of Liverpool, Texas, sued Bill

Strickland, the mayor of Liverpool, for slander and malicious prosecution.

Strickland responded with a plea to the jurisdiction, maintaining that he was

immune from suit against him individually under section 101.106(f) of the Texas

Tort Claims Act, among other common law assertions of immunity. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). The trial court granted the

plea to the jurisdiction. On appeal, Hopkins contends that section 101.106(f) is

inapplicable, because he sued Strickland in his individual capacity for acts outside

the scope of Strickland’s official duties as mayor. We conclude that section

101.106(f) bars Hopkins’s claims against Strickland and therefore affirm.

                                   Background

      After Strickland was elected mayor of Liverpool, Hopkins resigned from his

position as the Liverpool police chief. Hopkins then sought employment with the

nearby city of Danbury. The mayor of Danbury, Bill Turnipseed, spoke to

Strickland on the phone about Hopkins as a potential candidate for chief of police

in Danbury. After their conversation, the two mayors agreed to meet to further

discuss Hopkins. At their meeting, Strickland provided Liverpool’s police budgets

for two years while Hopkins was the chief of police to Turnipseed. He also

answered Turnipseed’s questions about Hopkins’s performance. Hopkins alleges

that during these conversations, Strickland defamed him by telling Turnipseed that

Hopkins was dishonest, not a proficient employee, and not capable of performing

the job of police chief.

      Around the same time, the Liverpool city council authorized Strickland to

collect funds that had been improperly paid to another former Liverpool employee.

Strickland met with a representative of the Brazoria County District Attorney’s

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Office to discuss collecting the funds. Hopkins alleges that Strickland also

discussed with the representative the possibility of pursuing criminal charges

against Hopkins for misappropriating city funds. Eventually, the City of Danbury

hired Hopkins as its chief of police. The district attorney’s office never prosecuted

Hopkins.

                                         Discussion

Standard of Review

      We review the trial court’s ruling on a plea to the jurisdiction de novo. State

v. Holland, 221 S.W.3d 639, 642 (Tex. 2007) (citing Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)). The plaintiff must

allege facts that affirmatively establish the trial court’s subject matter jurisdiction.

Id.; City of Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.]

2008, no pet.). In determining whether the plaintiff has satisfied this burden, we

construe the pleadings liberally in the plaintiff’s favor and deny the plea if the

plaintiff has alleged facts affirmatively demonstrating jurisdiction to hear the case.

Miranda, 133 S.W.3d at 226–27; Smith v. Galveston Cnty., 326 S.W.3d 695, 698

(Tex. App.—Houston [1st Dist.] 2010, no pet.).

      If the plea to the jurisdiction challenges the existence of jurisdictional facts,

the trial court must consider relevant evidence submitted by the parties. Miranda,

133 S.W.3d at 227. When the relevant evidence is undisputed or fails to raise a fact

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question on the jurisdictional issue, the trial court rules on the plea to the

jurisdiction as a matter of law. Id. at 228. After a defendant asserts, and supports

with evidence, that the court lacks subject matter jurisdiction, the plaintiff must

show the existence of a disputed fact issue in order to avoid dismissal for want of

jurisdiction. Id. at 227–28. The standard of review for such jurisdictional disputes

“generally mirrors that of a [traditional] summary judgment.” Id. at 228. On the

other hand, if the relevant evidence is undisputed or fails to raise a fact question on

the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a

matter of law. Id. In reviewing the evidence presented, we take as true all evidence

favorable to the plaintiff, indulging every reasonable inference in the plaintiff’s

favor. Id.

Analysis

      Section 101.106(f) of the Tort Claims Act 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). Thus, a defendant is entitled to

dismissal under section 101.106(f) upon proof that the plaintiff’s suit (1) was based

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on conduct within the general scope of the defendant’s employment with a

governmental unit and (2) could have been brought against the government unit

under the Tort Claims Act. Id.; see also Franka v. Velasquez, 332 S.W.3d 367, 369

(Tex. 2011); Univ. of Tex. Health Sci. Ctr. v. Bailey, 332 S.W.3d 395, 401 (Tex.

2011). The first component encompasses two inquiries: whether the individual

defendant was an employee of a governmental unit and whether the acts alleged

fall within the scope of that employment at the relevant time. See Anderson v.

Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

The statute strongly favors dismissal of governmental employees. Id.; Waxahachie

Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005, pet.

denied).

Scope of Employment

      It is undisputed that Liverpool, a governmental unit, employed Strickland as

mayor at the relevant time. Accordingly, we turn to examine whether Strickland

was acting within the scope of his general employment when he committed the

alleged tortious acts—that is, when he made the defamatory statements to

Turnipseed and consulted with the district attorney’s office about prosecuting

Hopkins.

      The Tort Claims Act defines “scope of employment” as “the performance

for a governmental unit of the duties of an employee’s office or employment and

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includes being in and about the performance of a task lawfully assigned to an

employee by competent authority.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.001(5). “An official acts within the scope of her authority if she is

discharging the duties generally assigned to her.” City of Lancaster v. Chambers,

883 S.W.2d 650, 658 (Tex. 1994). This is true even if the employee, in discharging

her duties, acts in part to serve the employee’s or a third party’s interest. Anderson,

365 S.W.3d at 125–26.

      The mayor is the chief executive officer of a municipality and has the duty

to supervise subordinate municipal officers. TEX. LOC. GOV’T CODE ANN.

§ 22.042(a) & (b) (West 2008); see also City of San Antonio v. Robert Thompson &

Co., 30 S.W.2d 339, 341 (Tex. App.—San Antonio 1930, writ dism’d).

Additionally, the mayor “shall inspect the conduct of each subordinate municipal

officer and shall cause any negligence, carelessness, or other violation of duty to be

prosecuted and punished.” TEX. LOC. GOV’T CODE ANN. § 22.042(b).

       In support of his plea to the jurisdiction, Strickland provided an affidavit

averring that all of his actions regarding this suit were within the scope of his

employment as mayor of Liverpool. He averred that when he spoke to Turnipseed

about Hopkins, he was responding to a routine employment verification request

and that responding to such a request was within the scope of his duties as mayor.

Hopkins presented no evidence to dispute this characterization of the mayor’s job

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description. Instead, Hopkins contends that slandering a former employee is not

within the scope of the mayor’s duties. Yet, an act may still be within the scope of

the employee’s duties even if the specific act that forms the basis of the civil suit

was wrongly or negligently performed, so long as the action was one related to the

performance of his job. See Chambers, 883 S.W.2d at 658 (holding police officers

were acting within the scope of their authority in pursuing a suspect even if driving

negligently to do so); Tex. Dep’t. of Pub. Safety v. Tanner, 928 S.W.2d 731, 735

(Tex.App.—San Antonio 1996, no writ) (“Even if a specific action is wrong or

negligent, an officer acts within the scope of his authority when performing the

general duties assigned.”). We conclude that Strickland acted within the general

scope of his duties in talking to Turnipseed when he made the statements to

Turnipseed. See Chambers, 883 S.W.2d at 658; Miranda, 133 S.W.3d at 228.

      Strickland further averred that he consulted with the district attorney’s office

in the scope of his employment in an attempt to collect funds at the request of the

city council. Strickland’s duties include the prosecution of subordinates for “any

negligence, carelessness, or other violation of duty.” See TEX. LOC. GOV’T CODE

ANN. § 22.042(b). Accordingly, consulting with the district attorney’s office about

a possible misappropriation of funds by a former Liverpool police chief, as alleged

by Hopkins, falls within Strickland’s duties as mayor.




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      Hopkins responds that in both talking to Turnipseed and consulting with the

district attorney’s office, personal animus motivated Strickland. Yet, Strickland

was completing tasks within his general duties as mayor, and though he may have

acted in part to serve his own interests, that does not take the acts outside the scope

of his employment. See Anderson, 365 S.W.3d at 125–126. We hold that Hopkins

has alleged no acts against Strickland that fall outside the general scope of his

employment. See Chambers, 883 S.W.2d at 658.

Could Have Been Brought Under the Tort Claims Act

      Given that the pleadings allege acts within the scope of Strickland’s

employment, Hopkins’s suit could have been brought under the Tort Claims Act

against Liverpool. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka,

332 S.W.3d at 375. Hopkins’s causes of action are both intentional tort claims for

which immunity is not waived. See City of Hempstead v. Kmiec, 902 S.W.2d 118,

122 (Tex. App.—Houston [1st Dist.] 1995, no writ). But all common-law tort

theories alleged against a governmental unit, even if not waived under the Tort

Claims Act, are assumed to be “under the Tort Claims Act,” because it is the Act

that delineates governmental tort liability. Franka, 332 S.W.3d at 375. We hold

that Hopkins’s suit against Strickland, while Strickland acted within the general

scope of his employment, “could have been brought under the Tort Claims Act”

for purposes of section 101.106(f). See Franka, 332 S.W.3d at 375; City of El Paso

                                          8
v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009); Brown v. Ke-Ping Xie, 260 S.W.3d

118, 122–23 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that

defamation claims against government employees were “under the Tort Claims

Act” for purposes of section 101.106).

                                       Conclusion

      We hold that the trial court properly granted Strickland’s plea to the

jurisdiction pursuant to section 101.106(f) of the Tort Claims Act. We therefore

affirm the order of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justice Jennings, Bland, and Massengale.




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