Concurring opinion issued July 29, 2013.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-10-01115-CV
                          ———————————
     THE BOARD OF TRUSTEES OF THE GALVESTON WHARVES,
                         Appellant
                                      V.
                         E.L. O’ROURKE, Appellee


               On Appeal from the County Court at Law No. 2
                         Galveston County, Texas
                       Trial Court Case No. 61873



                        CONCURRING OPINION

      When the Court’s opinion issued on May 30, 2013, my study of the case was

still on-going and I had sufficiently grave reservations regarding the resulting

disposition that I voted to dissent, with my dissent to follow.    I have since
concluded that I concur in the judgment of the Court despite Mr. O’Rourke being

left without a remedy for having been assaulted, targeted and maligned.           As

pleaded, his is the “you can’t get there from here” dilemma.

      The majority opinion’s very first sentence of the “Background” section

describes appellee E. L. “Ted” O’Rourke as, “president [sic] of the International

Longshoremen’s Association Local 20” (ILA), who “has a history of altercations

with the Port of Galveston Police Department.” Not only is such a shadowy cast of

O’Rourke (a 34 year member of the ILA, he was elected as the Local’s President

eleven years ago) uncalled for, the record reflects that it was an assault upon

O’Rourke by Port Police Officer Perkins that gives rise to this case. 1 Indeed, there

is a history, but it is a history of harassment of O’Rourke and Local 20 members by

Galveston City police officers working at the Port or Port Policemen themselves

(including Officer Perkins), dating from 2002 when O’Rourke intervened on behalf

of porters (who handle luggage from cruise lines that enter the Port) being stopped

by the Port Police on pretext stops in order to “persuade” them to kick-back some

of the tip money the porters received from the passengers. When O’Rourke

demanded such “shake downs” cease, the Port Police took note and intimidation

commenced soon thereafter (January 2003) when O’Rourke was given a parking

ticket, despite his car being parked off Port property and legally parked.

1
      Perkins had been subject of nine prior complaints for which he was never
      disciplined.
                                          2
      The next interchange between Perkins and O’Rourke was December 2,

2007, when Perkins ticketed O’Rourke’s car. Believing he was legally parked,

O’Rourke sought an explanation of the violation from Perkins, whose response

was “You remember what you did to me” (referencing the porter “shake-down”

episode). O’Rourke avers that this exchange resulted in Perkins grabbing his neck

and pinning him against a bus.

      O’Rourke’s Original Petition made claims against governmental entities as

well as individuals. He ultimately abandoned his intentional tort claims against the

individuals and sought non-monetary declaratory and injunctive relief against the

Wharves that would a) stop surveillance focused upon him when at the Port; b)

acknowledge Perkins’s misconduct and discipline him for it; and c) end targeted

surveillance of anyone else. As actions comprising “illegalities or conduct outside

of Appellants’ statutory authority,” these requests for declaratory and injunctive

relief fall within the ultra vires exception to governmental immunity. See City of

El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). The ultra vires exception,

however, only applies to individual state actors, and as such, the Wharves were

entitled to dismissal of these claims. See id. at 372–73. Threading the needle in

such cases is increasingly difficult, and pursuit of declaratory and injunctive relief

against the individual state actors in their official capacities, as opposed to the




                                          3
governmental entity, may have been the only means to survive the plea to the

jurisdiction.

                                   Conclusion

      Accordingly, I concur in the judgment.




                                            Jim Sharp
                                            Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, concurring.




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