      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00265-CV



                                 Charles N. Draper, Appellant

                                                v.

   Greg Guernsey, in his Capacity as Director of Planning and Development Watershed
             Protection Review Department; and City of Austin, Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
     NO. D-1-GN-13-000778, HONORABLE GUS J. STRAUSS JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               In a land-use dispute, Charles N. Draper, pro se, sued the City of Austin and one of

its employees, Greg Guernsey, “in [Guernsey’s] capacity as Director of Planning and Development

Watershed Protection Review Department.”1 The City and Guernsey filed a motion to dismiss all

claims against him, invoking subsections (a) and (e) of the Tort Claims Act’s election-of-remedies

provision, Section 101.106 of the Civil Practice and Remedies Code.2 The district court granted the

motion and dismissed “all claims and causes of action filed against [Guernsey] in this lawsuit.”




       1
        Appellees advise us that Guernsey’s correct job title is “Director of the Planning and
Development Review Department,” but the salient point is that he is an employee of the City.
       2
        Tex. Civ. Prac. & Rem. Code § 101.106(a), (e); see id. §§ 101.001-.109 (Texas Tort
Claims Act).
Draper appeals this interlocutory order of dismissal.3 While we affirm the district court’s order in

part, we must also reverse in part because it awards relief beyond that properly authorized under

subsections (a) or (e) as they apply to this case.

                Draper’s claims for relief center on his efforts to develop a tract he owns in the

Oak Hill area of Southwest Austin and the City’s refusal thus far to recognize what Draper claims

are rights “grandfathered,” vis-a-vis Austin’s current development restrictions, by Chapters 43

and 245 of the Local Government Code.4 Draper seeks injunctive and declaratory relief to enforce

       3
           Our appellate jurisdiction generally extends only to review of final judgments, see
Texas Dep’t of Criminal Justice-Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 813
(Tex. 2012) (per curiam), but Draper’s appeal of this interlocutory order of dismissal is authorized
by paragraphs (5), (8), or both, of section 51.014, subsection (a), of the Civil Practice and Remedies
Code. Tex. Civ. Prac. & Rem. Code § 51.014(a)(5) (authorizing appeal of interlocutory order
denying “an assertion of immunity by an individual who is an officer or employee of . . . a political
subdivision of the state”), (8) (authorizing appeal of interlocutory order that grants or denies
jurisdictional challenge by a governmental unit); see Texas Dep’t of Aging & Disability Servs.
v. Cannon, ___ S.W.3d ___, No. 12-0830, 2015 Tex. LEXIS 2, at *5 (Tex. Jan. 9, 2015); Austin
State Hosp. v. Graham, 347 S.W.3d 298, 300-01 (Tex. 2011) (per curiam). Under either statutory
ground, furthermore, Draper’s appeal automatically stayed proceedings in the trial court, see
Tex. Civ. Prac. & Rem. Code § 51.014(b), providing him the relief he has requested through a
separate motion for stay. Accordingly, we dismiss Draper’s stay motion as moot.

            Draper also seeks reversal of a second interlocutory order that denied him a summary-
judgment motion on his claims and ruled adversely to him on various related evidentiary issues; in
fact, his appellate briefing focuses largely on this order and the perceived merits of his claims rather
than issues relevant to the application of subsections (a) or (e). We lack jurisdiction to award him
that relief in the context of this appeal. He also seeks “summary judgment” on appeal—i.e., reversal
of the district court’s orders—based on what he asserts is the untimeliness of appellees’ brief. We
deny the motion.
       4
           See Tex. Loc. Gov’t Code §§ 43.002 (grandfathering protections applicable in areas
annexed by a municipality), 245.001-.007 (grandfathering protections applicable to land-use
permitting by political subdivisions); see also Harper Park Two, LP v. City of Austin, 359 S.W.3d
247, 254-60 (Tex. App.—Austin 2011, pet. denied) (construing Chapter 245 and enforcing it against
the City).


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these asserted rights. As the appellees acknowledge, the Legislature has expressly waived the

City’s governmental immunity against Draper’s declaratory and injunctive claims to enforce

Chapter 245—in fact, it has provided that Chapter 245 “may be enforced only through mandamus

or declaratory or injunctive relief.”5 Additionally, fairly construing the substance of his pleadings,

Draper attempts to assert what are in the nature of “ultra-vires” claims seeking injunctive or

declaratory relief to restrain other alleged statutory violations by the City.6 We observe—as it will

become relevant to our analysis—that the proper defendant to an ultra-vires claim seeking to restrain

allegedly unlawful actions by the City would be Guernsey or some other appropriate City officer, in

his or her official capacity, not the City itself.7

                 Draper also seeks monetary damages—a total exceeding $10 million, in fact. His

specific theories include “fraudulent misrepresentation” by Guernsey and other City staff in their

decisions regarding Draper’s development rights. He also complains of the impending foreclosure

of his house due to his inability to develop his tract, not to mention purported threats, vandalism,

burglaries, and even the beating of his dogs by “opposing political interests” in retaliation for his

efforts to do so. Finally, Draper also complains of “perjury” and “breach of contract” by appellees’

counsel, citing what he terms “false statements” by counsel in seeking a continuance.



           We derive our summary of Draper’s factual allegations from his live petition, construed
liberally and in favor of jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 227-28 (Tex. 2004).
        5
            Tex. Loc. Gov’t Code § 245.006 (emphasis added).
        6
            See City of El Paso v. Heinrich, 284 S.W.3d 366, 370-72 (Tex. 2009).
        7
            See id. at 372-73.

                                                      3
                  The grounds for dismissal raised by appellees’ motion and made the basis for

the district court’s order were confined solely to subsections (a) and (e) of Section 101.106.

Subsection (a) provides:


        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.8


Subsection (e), in turn, states:

        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.9


                  The Texas Supreme Court has provided the following pertinent guidance for our

application of these provisions:


•       Although both provisions refer to “a suit under this chapter,” “the propriety of dismissal must
        be evaluated on a claim-by-claim basis to give effect to the statute.”10

•       A claim “under this chapter” refers to one sounding in tort, regardless of whether or not the
        plaintiff actually purports to assert it under the Tort Claims Act or could ultimately recover
        via that statute.11




        8
             Tex. Civ. Prac. & Rem. Code § 101.106(a).
        9
             Id. § 101.106(e).
        10
           Cannon, 2015 Tex. LEXIS 2, at *11 n.10 (citing Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008)).
        11
             See id. at *9 (citing Franka v. Velasquez, 332 S.W.3d 367, 379-80 (Tex. 2011)).

                                                  4
•      However, claims that seek remedies independent of the Tort Claims Act are not
       “under the Act” and are not subject to the above dismissal mechanisms.12 This is consistent
       with Section 101.106’s role within the Act as a whole—as the supreme court has observed,
       “[t]he Act . . . opens the door to governmental liability in certain tort actions, while
       [Section 101.106] narrows that opening.”13

•      The references to “employee” or “employees” in both subsections (a) and (e) denote persons
       sued in their individual capacities—i.e., the plaintiff seeks to impose liability upon them
       personally. Such a claim stands in contrast to one asserted against a governmental employee
       in his or her official capacity, which in the context of tort or other damages claims is “in all
       but name only” a claim seeking recovery from the governmental employer.14


The bulk of Draper’s arguments are either inconsistent with these holdings or simply inapposite

under them, focusing largely on disputing whether the City enjoys governmental immunity against

his claims or Guernsey official immunity against them. But appellees—in addition to urging that

we dismiss Draper’s pro se appeal based solely on technical violations of the briefing rules—also

overlook some of these important qualifications and limitations on subsections (a) and (e)’s

application, including the analytical significance of the distinction between claims asserted against

Guernsey in his individual versus official capacities.

                The effect of subsection (e), as the supreme court has construed it, is merely that

Draper’s assertions of tort claims against the City—not his claims founded on immunity waivers

independent from the Tort Claims Act or other non-tort theories—require dismissal of those

same tort claims to the extent Draper asserts them against Guernsey individually. His misplaced

arguments about official immunity notwithstanding, it is unclear whether Draper’s tort claims


       12
            See id. at *10-11 & n.10, *14-15.
       13
            See id. at *17-18.
       14
            See Texas Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 356-57 (Tex. 2013).

                                                  5
actually are intended to seek recovery from Guernsey individually, as opposed to a recovery from

the City based on Guernsey’s allegedly wrongful acts. Draper, again, purported to sue Guernsey “in

his capacity” as a City employee, suggesting an official-capacity suit, and his allegations complain

entirely of alleged acts or omissions by Guernsey while performing his job duties. But to the extent

Draper’s pleadings could be construed to assert his tort claims against Guernsey individually,

dismissal of those claims would clearly be mandated under subsection (e).

               Similarly, subsection (a) means that the tort claims Draper has asserted against the

City “constitute[] an irrevocable election by [Draper] and immediately and forever bars any suit or

recovery by [him]” against Guernsey individually “regarding the same subject matter.” To the extent

the district court’s order refers to any claims of this sort that Draper has actually asserted or might

someday assert, it appropriately dismissed them.

               The district court, however, dismissed “all claims and causes of action filed against

[Guernsey] in this lawsuit,” which would facially extend also to any claims Draper asserts against

Guernsey in his official capacity. Neither subsection (a) nor (e) authorizes this relief,15 but any

error would be harmless with respect to most of Draper’s claims, inasmuch as his assertion of the

same claim against both the City and Guernsey in his official capacity would generally amount

merely to a duplicative pleading for the same relief against the same defendant.16 However, this is

       15
           Cf. Tex. Civ. Prac. & Rem. Code § 101.106(f) (providing for substitution of governmental
entity for employee defendant under circumstances where claim is “considered to be against the
employee in the employee’s official capacity only”).
       16
           See Ngakoue, 408 S.W.3d at 356-57; cf. Texas Dep’t of State Health Servs. v. Balquinta,
429 S.W.3d 726, 750 (Tex. App.—Austin 2014, pet. filed) (suggesting for these reasons that any
error in failing to dismiss official-capacity defendant sued alongside governmental defendant is
harmless where Legislature has waived the government’s immunity).

                                                  6
not true of Draper’s ultra-vires claims, which, while seeking to bind the City, must formally be

asserted against Guernsey in his official capacity rather than against the City itself.17 In purporting

to dismiss Draper’s ultra-vires claims—and in the absence of any other jurisdictional bar to these

claims demonstrated by the City or apparent from the record—the district court reversibly erred.



                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed in part; Reversed in part

Filed: February 25, 2015




       17
            See Heinrich, 284 S.W.3d at 372-73.

                                                  7
