                         NUMBER 13-17-00022-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KRISTINE ZAMBRANO, IN HER
INDIVIDUAL AND OFFICIAL
CAPACITIES,                                                                Appellant,

                                              v.

AARON MALONE,                                                              Appellee.


                    On appeal from the 36th District Court
                           of Bee County, Texas.


                     MEMORANDUM OPINION

            Before Justices Rodriguez, Longoria, and Hinojosa
                  Memorandum Opinion by Justice Hinojosa

      Appellant Kristine Zambrano brings this interlocutory appeal from the trial court’s

denial of her plea to the jurisdiction, in which she sought dismissal of claims filed by

appellee Aaron Malone. By two issues, Zambrano argues (1) she is protected in her
official capacity by sovereign immunity from Malone’s state law claims and (2) she is

protected by qualified immunity from Malone’s federal constitutional claims. 1 We affirm

in part and reverse and render in part.

                                              I. BACKGROUND 2

        Malone is an inmate at the William G. McConnell Unit, a corrections facility located

in Bee County, Texas, operated by the Texas Department of Criminal Justice–Institutional

Division (TDCJ-ID).          Malone filed suit against the TDCJ-ID and multiple employees,

including Zambrano, who is a corrections officer at the facility. 3 Malone alleged that

Zambrano ordered the prison’s medical provider to draw his blood after Malone requested

medical treatment. However, Malone refused to submit to the procedure. As a result,

he alleges Zambrano ordered another officer to “tear up” his cell. When Malone returned

to his cell, he saw two corrections officers exiting with a “big red chain bag.” Zambrano

then arrived and told Malone, “This is what happens when you waste my time.” Malone

alleged that the officers confiscated legal material, a back brace, and prescribed

medication.        He also alleged that Zambrano ordered him not to attend a medical

appointment later that day and not to seek further medical treatment “for the same issue.”

        Malone sued Zambrano for theft and conversion. Malone also alleged federal

constitutional claims, including violations of his due process rights, the Takings Clause,



        1   Malone did not file an appellee’s brief.

        2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
        3 Malone’s live pleading consists of an original petition and two supplemental petitions. See TEX.
R. CIV. P. 80. The remaining defendants are not parties to this appeal.
                                                       2
the Eighth Amendment’s prohibition against cruel and unusual punishment, and his right

of access to the courts. The trial court denied Zambrano’s plea to the jurisdiction in its

entirety. 4 This interlocutory appeal followed. 5

                                        II. STATE LAW CLAIMS

        By her first issue, Zambrano alleges she was protected by sovereign immunity

against Malone’s state law claims.

A. Applicable Law and Standard of Review

        The doctrine of sovereign immunity provides that “no state can be sued in her own

courts without her consent, and then only in the manner indicated by that consent.”

Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1

Tex. 764, 769 (1847)). Sovereign immunity deprives a trial court of jurisdiction over

lawsuits in which the state or certain governmental units have been sued, unless the state

consents to suit. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). When a state

official files a plea to the jurisdiction, the official is invoking the sovereign immunity from

suit held by the government itself. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,

844 (Tex. 2007).

        The plaintiff has the initial burden to plead facts affirmatively showing that the trial


        4 In addition to raising immunity arguments, Zambrano’s motion in the trial court also sought

dismissal of Malone’s claims pursuant to chapter 14 of the Texas Civil Practice and Remedies Code. See
TEX. CIV. PRAC. & REM. CODE ANN. ch. 14 (West, Westlaw through 2017 1st C.S.). However, Zambrano
only appeals on the basis of her immunity arguments. For convenience, we therefore refer to Zambrano’s
motion as a plea to the jurisdiction.

         5 We have jurisdiction over this interlocutory appeal pursuant to section 51.014 of the Texas Civil

Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5), (8) (West, Westlaw
through 2017 1st C.S.); Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (holding that an
interlocutory appeal may be taken from orders denying a governmental employee’s assertion of immunity
regardless of the procedural vehicle used).
                                                     3
court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). Therefore, a governmental unit is entitled to immunity unless the plaintiff

pleads facts invoking a waiver of immunity. See Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 224 (Tex. 2004). We construe the pleadings liberally in favor of the pleader,

look to the pleader’s intent, and accept as true the factual allegations in the pleadings.

See Miranda, 133 S.W.3d at 226, 228.                  “Whether a pleader has alleged facts that

affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law

reviewed de novo.” Id. at 226.

B. Analysis

        Zambrano argues that the “[d]enial of Zambrano’s Plea was improper due to

Malone’s failure to identify a waiver of Zambrano’s sovereign immunity from suit” for those

claims brought under state law. Because government officials sued in their individual

capacity 6 are not entitled to rely on the State’s sovereign immunity, we construe

Zambrano’s issue as addressing her right to dismissal in her official capacity. 7 See

Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—Austin 2007, no pet.) (“Individuals

sued in their individual capacity . . . may not rely on the defense of sovereign immunity[.]”).




        6   Zambrano maintains on appeal that she was sued in both her individual and official capacities.

        7 In her brief, Zambrano refers to 101.106 of the civil practice and remedies code, but she provides
no argument or authority for its application to Malone’s claims. See TEX. CIV. PRAC. & REM. CODE ANN. §
101.106 (West, Westlaw through 2017 1st C.S.). To the extent Zambrano’s brief can be construed as
raising an issue concerning the statute’s application, we conclude the issue is waived as inadequately
briefed. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”).

                                                      4
        A suit against government employees in their official capacities is, in all respects,

a suit against the governmental entity; thus, employees sued in their official capacities

are shielded by sovereign immunity or governmental immunity. 8                             See Franka v.

Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011) (“[A]n employee sued in his official

capacity has the same governmental immunity, derivatively, as his government

employer.”). Malone sued Zambrano for the intentional torts of theft and conversion.

The Texas Tort Claims Act waives sovereign immunity for certain tort claims brought

against governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, .022,

.025 (West, Westlaw through 2017 1st C.S.). However, this limited waiver of immunity

does not apply to intentional torts. See id. § 101.057 (West, Westlaw through 2017 1st

C.S.); City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014); Donohue v. Butts,

516 S.W.3d 578, 581 (Tex. App.—San Antonio 2017, no pet.). Malone’s pleadings do

not demonstrate a waiver of sovereign immunity for claims against Zambrano in her

official capacity. See Garcia, 372 S.W.3d at 636. Therefore, the trial court erred in

denying Zambrano’s plea to the jurisdiction as to Malone’s state law claims against

Zambrano in her official capacity. We sustain Zambrano’s first issue.

                                          III. FEDERAL CLAIMS

        By her second issue, Zambrano argues she is entitled to “qualified immunity from

federal claims brought against her in her individual capacity.”


        8  While not applicable here, we note that there exists an ultra vires exception to sovereign immunity
for suits against government officials in their official capacity. See City of El Paso v. Heinrich, 284 S.W.3d
366, 372–73 (Tex. 2009). This exception applies only to actions seeking to bring a government official’s
future acts into compliance with the law. Id. at 376. Relief for an ultra vires claim is limited to prospective
declaratory or injunctive relief, but the claim cannot be used to obtain monetary relief for past damages.
Id. at 374–76. Malone, who did not plead an ultra vires claim, seeks only monetary relief for past damages
with respect to his state law claims against Zambrano in her official capacity.
                                                      5
       Malone sued Zambrano for violations of federal law pursuant to section 1983, title

42 of the United States Code. See 42 U.S.C.A. § 1983 (West, Westlaw through P.L.

115-90). Section 1983 imposes liability for violations of rights protected by the United

States Constitution. Leo v. Trevino, 285 S.W.3d 470, 479 (Tex. App.—Corpus Christi

2006, no pet.). Qualified immunity is an affirmative defense available to government

officials sued in their individual capacities under section 1983. Bexar Cty. v. Giroux-

Daniel, 956 S.W.2d 692, 694 (Tex. App.—San Antonio 1997, no pet.).               It protects

governmental officers with discretionary authority from liability so long as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 428

(Tex. 2004).    Qualified immunity is a uniquely federal doctrine that “bears some

resemblance to the Texas common-law defense of official immunity[.]” Brown & Gay

Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 128 (Tex. 2015).

       Like other affirmative defenses, qualified immunity “must be pled and proved by

the party asserting it.” Id.; see Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999) (per curiam). Generally, when claims based on federal substantive law are raised

in state court, state law and rules govern the manner in which the federal claims are tried

and proved. Johnson v. Nacogdoches Cty. Hosp. Dist., 109 S.W.3d 532, 536 (Tex.

App.—Tyler 2001, pet. denied).        Under Texas law, an affirmative defense is an

independent reason why a plaintiff should not recover. Nowak v. DAS Inv. Corp., 110

S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Ordinarily, the party

asserting an affirmative defense has the burden of both pleading and proving the defense.


                                             6
Id.   Therefore, Zambrano was required to raise qualified immunity in a motion for

summary judgment. See Martinez v. Val Verde Cty. Hosp. Dist., 110 S.W.3d 480, 485

(Tex. App.—San Antonio 2003) (noting affirmative defense must be raised in a motion for

summary judgment not in a plea to the jurisdiction), aff’d, 140 S.W.3d 370 (Tex. 2004);

see also Adams v. Prine, No. 04-16-00327-CV, 2017 WL 96119, at *3 (Tex. App.—San

Antonio Jan. 11, 2017, no pet.) (mem. op.) (explaining that a government official is

required to raise the defense of quasi-judicial immunity to individual-capacity section 1983

claims in a motion for summary judgment). Zambrano did not file a motion for summary

judgment asserting the defense of qualified immunity. Therefore, she has not shown

herself entitled to the defense. Accordingly, the trial court did not err in denying her plea

to the jurisdiction on this basis. We overrule Zambrano’s second issue.

                                     IV. CONCLUSION

       We reverse in part the trial court’s order denying Zambrano’s plea to the jurisdiction

and render judgment dismissing Malone’s state law claims against Zambrano in her

official capacity, which include claims for theft and conversion. We affirm the remainder

of the trial court’s order.

                                                                LETICIA HINOJOSA
                                                                Justice

Delivered and filed the
25th day of January, 2018.




                                             7
