                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                NO. 2-09-362-CV


LINDA-CHERYL SKODA                                                 APPELLANT

                                         V.

MONTAGUE COUNTY                                                    APPELLEES
AND SYDNEY NOWELL

                                     ------------

         FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

                                     ------------

                        MEMORANDUM OPINION1
                                     ------------

     Linda-Cheryl Skoda appeals from the trial court’s order dismissing her suit

against Montague County and Sydney Nowell, the tax assessor-collector for

Montague County. We affirm.




     1
         See Tex. R. App. P. 47.4.
                                  Background

      The County sued Skoda to collect past due property taxes. After Skoda

filed a countersuit against both the County and Nowell, the County nonsuited its

claims against Skoda.    The County and Nowell also filed special exceptions

asserting that both are immune from Skoda’s claims and asking the trial court to

dismiss Skoda’s countersuit against them. The County claimed that it is immune

from suit under section 101.055(1) of the Texas Tort Claims Act (TTCA). See

Tex. Civ. Prac. & Rem. Code Ann. § 101.055(1) (Vernon 2005).                Nowell

contended that she was entitled to dismissal under section 101.106(e) of the

TTCA, the election of remedies provision. Id. § 101.106(e) (Vernon 2005).

      The trial court granted the special exceptions and dismissed Skoda’s

claims against Nowell with prejudice under section 101.106(e). The trial court

also ordered Skoda to replead as to the County, but the order stated that if

Skoda failed to replead within thirty days, the case would be dismissed.

See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998) (providing that upon

sustaining special exceptions, trial court must give pleader opportunity to replead

unless defect cannot be cured); Ford v. Performance Aircraft Servs., Inc., 178

S.W.3d 330, 336 (Tex. App.––Fort Worth 2007, pet. denied). Skoda failed to

replead; she therefore appeals the trial court’s dismissal of her claims against

both the County and Nowell.




                                        2
                                    Analysis

      Skoda does not bring specified issues or points, instead she contends

generally that the County and Nowell are not immune from the claims she

asserted in her countersuit.2

Did the Trial Court Properly Dismiss Skoda’s Claims Against Nowell?

      Section 101.106 of the TTCA provides, in pertinent part:

      (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.

          ....

      (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 Ann. § 101.106(a), (e).

      Under the TTCA’s election scheme, recovery against an individual

employee is barred and may be sought against only the governmental unit in

three instances: (1) when suit is filed against the governmental unit only, id. §

101.106(a); (2) when suit is filed against both the governmental unit and its

employee, id. § 101.106(e); or (3) when suit is filed against an employee whose

      2
         Although Skoda includes argument and authorities in her brief, most of
them appear to go to the merits of whether the County could have succeeded in
its initial suit against her. However, we have interpreted her complaints to
include a challenge to the dismissals based on the reasons given by the trial
court in its order. See Tex. R. App. P. 38.9 (providing that we are to construe
briefs liberally).

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conduct was within the scope of his or her employment and the suit could have

been brought against the governmental unit, id. § 101.106(f). Section 101.106 ―is

designed to force a plaintiff to decide at the outset whether an employee acted

independently, and is thus solely liable, or whether she acted within the general

scope of her employment so that the governmental unit is vicariously liable.‖

Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 656–57 (Tex. 2008); Tex. Bay

Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 397 (Tex. App.—Fort

Worth 2008, no pet.).    The TTCA’s definition of ―employee‖ includes elected

officials. Tex. Bay Cherry Hill, 257 S.W.3d at 398–99.

      All tort theories alleged against a governmental unit are brought ―under the

[TTCA]‖ for purposes of section 101.106. Garcia, 253 S.W.3d at 659; Tex. Bay

Cherry Hill, 257 S.W.3d at 400.      However, claims against the government

brought pursuant to waivers of sovereign immunity that exist apart from the

TTCA are not brought ―under [the TTCA].‖ See Garcia, 253 S.W.3d at 659;

Swain v. Hutson, No. 02-09-00038-CV, 2009 WL 3246750, at *4–5 (Tex. App.––

Fort Worth Oct. 8, 2009, pet. denied) (mem. op.). Whether a plaintiff sues a

governmental employee in the employee’s official or individual capacity is

irrelevant under the applicable subsections of section 101.106 because all tort

theories alleged against a governmental unit are assumed to be claims under the

TTCA for purposes of section 101.106. Tex. Bay Cherry Hill, 257 S.W.3d at 401.

      A governmental entity perfects the statutory right to a dismissal of its

employee upon the filing of a motion to dismiss. Brown v. Ke-Ping Xie, 260

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S.W.3d 118, 122 (Tex. App.––Houston [1st Dist.] 2008, no pet.); Villasan v.

O’Rourke, 166 S.W.3d 752, 758 (Tex. App.—Beaumont 2005, pet. denied).

Even if the plaintiff amends her petition after the governmental entity files a

motion to dismiss, the amended petition does not moot the right created by the

filing of a motion under section 101.106. Villasan, 166 S.W.3d at 758.

      Nowell filed her motion to dismiss under section 101.106(e) based on

Skoda’s first amended countersuit and jury demand, thus perfecting her statutory

right to dismissal upon the filing of that motion. See Brown, 260 S.W.3d at 122;

Villasan, 166 S.W.3d at 758. We therefore look to the allegations set forth in

Skoda’s first amended countersuit to determine whether the trial court erred by

dismissing Skoda’s claims against Nowell.      See Brown, 260 S.W.3d at 122;

Villasan, 166 S.W.3d at 758.

      In her first amended countersuit, Skoda alleged that the County lacked

jurisdiction to sue her for past-due property taxes and that Nowell, by the taking

of her official constitutional oath as tax assessor-collector, was a party to the

countersuit for breaching her constitutional oath as tax assessor-collector and

filing a fraudulent suit for past-due property taxes. All of Skoda’s claims against

Nowell arise out of the County’s suit for past-due property taxes. In essence,

Skoda contends that the County, under Nowell’s direction, wrongfully sued her.

      Skoda does not allege any statutory theory of recovery against the County

and Nowell independent of the common law; thus, all of her claims fall ―under this

chapter‖ for purposes of section 101.106(e). Garcia, 253 S.W.3d at 659; Tex.

                                        5
Bay Cherry Hill, 257 S.W.3d at 400. Accordingly, the trial court did not err by

dismissing Skoda’s claims against Nowell pursuant to subsection 101.106(e),

regardless of whether Skoda’s claims are against Nowell in her official or

individual capacity. Garcia, 253 S.W.3d at 659–60; Tex. Bay Cherry Hill, 257

S.W.3d at 400–01.

Did the Trial Court Properly Dismiss Skoda’s Claims Against the County?

      Skoda sought damages from the County for its filing a suit against her to

recover past due property taxes. Section 101.055(1) of the civil practice and

remedies code states that the TTCA’s limited waiver of governmental immunity

for certain tort claims does not apply to a claim arising in connection with the

assessment or collection of taxes by a governmental unit. Tex. Civ. Prac. &

Rem. Code Ann. § 101.055(1).       This preservation of governmental immunity

extends to acts or omissions that constitute an implementation of policy decisions

on how to collect or assess taxes. Driskill v. State, 787 S.W.2d 369, 370 (Tex.

1990); see Establishment of Religion Devotion Christian Ministries Non

Denomination Cmty. of Jesus Christ v. County of Atascosa, No. 04-03-00932-

CV, 2005 WL 154200, at *1 (Tex. App.––San Antonio Jan. 26, 2005, no pet.)

(mem. op.) (applying section 101.055 to property tax assessment and collection).

Skoda’s claims are directly related to the County’s decision to sue her for back

property taxes and thus its policy decision to utilize an authorized method for

collecting such taxes.   See Tex. Const. art. VIII, § 9 (setting forth maximum

property tax counties may levy), § 10 (prohibiting legislature from excusing

                                        6
citizens from property taxes except in emergency circumstances), § 14 (providing

for election of tax assessor-collector for each county); Tex. Tax Code Ann.

§ 33.41 (Vernon 2008) (providing authority for taxing unit to sue to collect tax by

foreclosing tax lien or to enforce personal liability, or both). Thus, the trial court

did not err by concluding that Skoda’s claims against the County are barred by

governmental immunity.

                                    Conclusion

      Having determined that the trial court did not err by dismissing Skoda’s suit

against the County and Nowell, we affirm the trial court’s judgment.




                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DELIVERED: August 5, 2010




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