                                                                                   ACCEPTED
                                                                              13-15-00517-CV
                                                              THIRTEENTH COURT OF APPEALS
                                                                     CORPUS CHRISTI, TEXAS
                                                                        12/16/2015 2:53:05 PM
                                                                             Dorian E. Ramirez
                                                                                        CLERK

                       NO. 13-15-00517-CV
                       NO. 13-15-00523-CV
                                                   FILED IN
                  IN THE COURT OF APPEALS13th COURT OF APPEALS
                                       CORPUS CHRISTI/EDINBURG, TEXAS
           FOR THE THIRTEENTH DISTRICT   OF TEXAS
                     AT EDINBURG, TEXAS 12/16/2015 2:53:05 PM
                                            DORIAN E. RAMIREZ
         ___________________________________________
                                                 Clerk

   BROOKS DITTO, BILLY PEMBLETON AND KARINA CASTANEDA
                   Individually and Officially
                          Appellants

                              VS.

             JUDITH CAMPOS AND JESSY CAMPOS
                          Appellees
         __________________________________________

            Interlocutory Appellate Proceeding from the
         County Court at Law No. 1 - Hidalgo County, Texas
     ___________________________________________________

        APPELLANTS BROOKS DITTO, BILLY PEMBLETON
     AND KARINA CASTANEDA’S AMENDED APPELLATE BRIEF
     ___________________________________________________

                             RICARDO J. NAVARRO
                             JOHN-MICHAEL HAYWARD
                             DENTON, NAVARRO, ROCHA
                             BERNAL, HYDE & ZECH, P.C.
                             701 E. Harrison St., Ste. 100
                             Harlingen, Texas 78550
                             956/421-4904
                             956/421-3621 (Fax)

                             COUNSEL FOR APPELLANTS
                             BROOKS DITTO, BILLY PEMBLETON
                             AND KARINA CASTANEDA,
                             Individually and Officially

ORAL ARGUMENT REQUESTED
                              NO. 13-15-00517-CV
                              NO. 13-15-00523-CV

                      IN THE COURT OF APPEALS
               FOR THE THIRTEENTH DISTRICT OF TEXAS
                         AT EDINBURG, TEXAS
             ___________________________________________

      BROOKS DITTO, BILLY PEMBLETON AND KARINA CASTANEDA
                      Individually and Officially
                             Appellants

                                       VS.

                 JUDITH CAMPOS AND JESSY CAMPOS
                             Appellees
        ___________________________________________________

         ON APPEAL FROM THE COUNTY COOURT AT LAW NO. 1
                    OF HIDALGO COUNTY, TEXAS
              TRIAL COURT CASE NUMBER CL-15-0914-A
        ___________________________________________________



                     IDENTITY OF PARTIES AND COUNSEL
      So that members of the Court may determine disqualification or recusal,
Appellants certify that the following is a complete list of the parties and all the
persons otherwise interested in the outcome of this case:

APPELLANTS:

      Brooks Ditto
      Billy Pembleton
      Karina Castaneda

COUNSEL FOR APPELLANTS:

      RICARDO J. NAVARRO
      JOHN-MICHAEL HAYWARD

      DENTON, NAVARRO, ROCHA & BERNAL
      HYDE & ZECH, P.C.
                                                                                -i-
    701 E. Harrison St., Ste. 100
    Harlingen, Texas 78550
    956/421-4904
    956/421-3621 (Fax)
    COUNSEL FOR APPELLANTS
    BROOKS DITTO, BILLY PEMBLETON AND
    KARINA CASTANEDA, Individually and Officially


APPELLEES:

    Judith Campos
    Jessy Campos

COUNSEL FOR APPELLEES:

    Mr. George Durham
    Attorney At Law
    517 W. Nolana, Ste. 6
    COUNSEL FOR APPELLEES




                                                    -ii-
                                               TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................................ i
TABLE OF CONTENTS .................................................................................................. iii
INDEX OF AUTHORITIES .............................................................................................. v
REQUEST FOR ORAL ARGUMENT ............................................................................. vii
JURISDICTIONAL STATEMENT .................................................................................... 2
STATEMENT OF THE CASE .......................................................................................... 2
ISSUES PRESENTED .................................................................................................... 2
SUMMARY OF THE ARGUMENT................................................................................... 3
STATEMENT OF FACTS ................................................................................................ 4
STANDARD OF APPELLATE REVIEW .......................................................................... 8
ARGUMENT .................................................................................................................... 9
Issue Presented #1: The Trial Court Erred in Denying the Appellants’
      Jurisdictional Plea Because the Court Lacked Subject Matter
      Jurisdiction over Plaintiffs Claims. ........................................................................... 9

                 Under §101.106(f), Tex. Civ. Prac. & Rem. Code, Weslaco Law
                 Enforcement Officers and Employees, Brooks Ditto, Billy
                 Pembleton, and Karina Castaneda Should Have Been Dismissed
                 From the Lawsuit. .................................................................................................... 9

                 Because the Trial Court Erred in Not Considering the Appellants’
                 Unchallenged Evidence the Court Erred in Denying Appellants’
                 Jurisdictional Plea and As Such the Claims Against Appellants
                 Should Be Dismissed In Their Entirety. ............................................................. 14

                 Appellants Are Immune From Plaintiffs’ Intentional Tort Claims. .................. 15

                 Plaintiffs Cannot Now Amend Their Suit Against the Employer, the
                 City Of Weslaco, and As Such All Claims Against Appellants Must
                 Be Dismissed With Prejudice. ............................................................................. 17
Issue Presented #2: The Trial Court Erred in Denying the City Defendant’s
      Rule 91a Motion to Dismiss Because Individually Named Defendants
      Brooks Ditto, Billy Pembleton, and Karina Castaneda Were Sued for
      Actions Taken Within the Course and Scope of Their Employment as
      Weslaco Police Officers and Thus Immune From Suit. ..................................... 17

                 Plaintiffs’ Claims against Appellants Have No Basis In Law
                 Because the Court Lacks Subject Matter Jurisdiction Under TTCA
                 §101.106(f). ............................................................................................................ 17



                                                                                                                                       -iii-
                Plaintiffs’ §101.101 Notice Letter Is A Condition Precedent to a Tort
                Claim Against Appellants’ Municipal Employer, the City of Weslaco.
                Therefore the Notice Letter Qualifies as an Exhibit Under Rule 91a
                and Rule 59. ........................................................................................................... 19
PRAYER FOR RELIEF.................................................................................................. 21
CERTIFICATE OF COMPLIANCE ................................................................................ 22
APPENDIX INDEX .......................................................................................................... 2




                                                                                                                                     -iv-
                                        INDEX OF AUTHORITIES
Cases
Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex.2011)....................... 16

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)....................... 16

City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 n. 1 (Tex.App.—
      Austin 2014, no pet.) ................................................................................. 17

City of Celina v. Blair, 171 S.W.3d 608 (Tex. App. 2005) ................................... 28

City of Dallas v. Sanchez, 449 S.W.3d 645, 649 (Tex. App. 2014) ..................... 16

City of El Campo v. Rubio, 980 S.W.2d 943, 945 (Tex. App.–Corpus Christi
       1998, pet. dism'd w.o.j.) ............................................................................. 16

City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App. 1995) ................ 24

City of Waco v. Kirwah, 298 S.W.3d 618, 622 (Tex.2009) .................................. 22

Dailey v. Thorpe, 445 S.W.3d 785, 788–89 (Tex.App.—Houston [1st Dist.]
      2014, no pet. h.) ........................................................................................ 16

Denton County v. Howard, 22 S.W.3d 113, 117-18 (Tex. App.-Fort Worth
     2000) ......................................................................................................... 22

El Paso Cmty. Partners v. B&G/Sunrise Joint Venture, 24 S.W.3d 620, 623
      (Tex. App.-Austin 2000, no pet.)................................................................ 16

Flowers v. Lavaca County Appraisal Dist., 766 S.W.2d 825, 827 (Tex. App.-
     Corpus Christi 1989, writ denied) .............................................................. 16

Fontenot v. Stinson, 369 S.W.3d 268, 274 (Tex. App. 2011) .............................. 24

Franka v. Velasquez, 332 S.W.3d 367, 384 (Tex. 2011) .................................... 20

GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex.App.—Beaumont
    2014, pet. filed) .......................................................................................... 16

Huntsville Independent Sch. Dist. v. Briggs, 262 S.W.3d 390, 395 (Tex. App.
     2008) ......................................................................................................... 25

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) .................... 16



                                                                                                                   -v-
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.
      2008) ......................................................................................................... 26

Molina v. Alvarado, 463 S.W.3d 867, 871 (Tex. 2015)........................................ 20

Paz v. Weir, 137 F.Supp.2d 782 (2001) .............................................................. 24

Rosenzweig v. Dallas Area Rapid Transit, 841 S.W.2d 897, 898 (Tex. App.
     1992) ......................................................................................................... 24

Sampson v. Texas Dep't of Pub. Safety, No. 09-12-00537-CV, 2013 WL
    3488255, at *1 (Tex. App. July 11, 2013) .................................................. 24

Sullivan v. Aransas Cnty. Navigation Dist., No. 13-10-00135-CV, 2011 WL
       61846, at *6 (Tex. App. Jan. 6, 2011) ....................................................... 24

Texas Adjutant General's Office v. Ngakoue, 408 S.W.3d 350, 360 (Tex.
     2013) ......................................................................................................... 20

Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-
      Arancibia, 324 S.W.3d 544, 546, 548 (Tex. 2010) .................................... 19

Wooley v. Schaffer, 447 S.W.3d 71, 74–76 (Tex.App.—Houston [14th Dist.]
     2014, no pet. h.) ........................................................................................ 16

Statutes
Texas Civil Practice & Remedies Code §51.014(a)(8), ....................................... 10

Texas Civil Practice & Remedies Code §101.057(2) .......................................... 23

Texas Civil Practice & Remedies Code §101.106(f) ........................................... 10

Texas Government Code §22.004(g), ................................................................. 16

Texas Local Government Code §341.003 ........................................................... 17

Texas Rule of Civil Procedure 59 ........................................................................ 27

Texas Rule of Civil Procedure 91a ...................................................................... 16

Texas Rule of Evidence 201................................................................................ 17




                                                                                                                   -vi-
                     REQUEST FOR ORAL ARGUMENT
      APPELLANTS hereby requests the opportunity to present oral argument on
their appeal before the Court as per TRAP 39.




                                                                        -vii-
                                NO. 13-15-00517-CV
                                NO. 13-15-00523-CV

                       IN THE COURT OF APPEALS
                FOR THE THIRTEENTH DISTRICT OF TEXAS
                          AT EDINBURG, TEXAS
              ___________________________________________

      BROOKS DITTO, BILLY PEMBLETON AND KARINA CASTANEDA
                      Individually and Officially
                             Appellants

                                         VS.

                   JUDITH CAMPOS AND JESSY CAMPOS
                               Appellees
          ___________________________________________________

           ON APPEAL FROM THE COUNTY COURT AT LAW NO. 1
                     OF HIDALGO COUNTY, TEXAS
               TRIAL COURT CASE NUMBER CL-15-0914-A

          ___________________________________________________

             APPELLANTS BROOKS DITTO, BILLY PEMBLETON
          AND KARINA CASTANEDA’S AMENDED APPELLATE BRIEF
          ___________________________________________________

MAY IT PLEASE THE COURT:
      COMES NOW the APPELLANTS, BROOKS DITTO, BILLY PEMBLETON
and KARINA CASTANEDA, Individually and Officially (“APPELLANTS”), and files
this Opening Appellate Brief in accordance with the Texas Rules of Appellate
Procedure (“TRAP”). For clarity, APPELLANTS will be referred to by name or as
“APPELLANTS” and the APPELLEES shall be referred to as the “Plaintiffs” or
“Campos”. 1



      1
         Also, references to “CR” shall be to “Clerk’s Record,” and cite exclusively to
Clerk’s Record 13-15-517. References to “SCR” shall be references to “Supplemental

Amended Brief for Appellants                                                  Page -1-
                         JURISDICTIONAL STATEMENT
        The Court has appellate jurisdiction over this matter pursuant to
§51.014(a)(8), Tex. Civ. Prac. & Rem. Code, which allows interlocutory appeals
from the denial of a Plea to the Jurisdiction by a governmental unit.

                           STATEMENT OF THE CASE
        The legal question presented in this interlocutory appeal is whether
APPELLANTS, this is, BROOKS DITTO, BILLY PEMBLETON, and KARINA
CASTANEDA are governmentally immune from Plaintiffs’ claims, as a matter of
law.
        APPELLANTS contend that Plaintiffs have pleaded claims against them that
them for conduct that occurred while in their capacity as law enforcement officers
for the City of Weslaco. As such, the APPELLANTS are automatically cloaked with
immunity from suit, and the trial court lacked subject matter jurisdiction over the
claims.

                               ISSUES PRESENTED
Issue Presented #1: The Trial Court Erred in Denying the Appellants’
     Jurisdictional Plea Because the Court Lacks Subject Matter
     Jurisdiction over Plaintiffs Claims.
   A.     Under Tex. Civ. Prac. & Rem. Code §101.106(f), Weslaco Law
          Enforcement Officers Brooks Ditto, Billy Pembleton, and Karina
          Castaneda Must Be Dismissed Individually.

   B.     Because the Trial Court Erred in Not Considering the Appellants’
          Unchallenged Evidence the Court Erred in Denying The Jurisdictional
          Plea and As Such the Claims Against Appellants’ Should Be Dismissed
          In Their Entirety.

   C.     Appellants Are Immune, As A Matter of Law, From Plaintiffs’ Intentional
          Tort Claims.




Clerk’s Record.” References to “Apdx” shall be to the “Appendix” which is incorporated
herein as an aid to the Court. References to “RR” shall be to the “Reporters Record.”

Amended Brief for Appellants                                                 Page -2-
   D.      Plaintiffs Cannot Now Amend Their Suit Against the City Of Weslaco and
           As Such All Claims Against City Defendants Should Be Dismissed With
           Prejudice.

Issue Presented #2: The Trial Court Erred in Denying the Appellants’ Rule
      91a Motion to Dismiss Because Defendants Brooks Ditto, Billy
      Pembleton, and Karina Castaneda Were Sued for Actions Taken Within
      the Course and Scope of Their Employment as Weslaco Police Officers
      and Thus They Are Immune From Suit.
   A.      Plaintiffs’ Claims against Appellants Have No Basis In Law Because the
           Court Lacks Subject Matter Jurisdiction Under §101.106(f), Tex. Civ.
           Prac. & Rem. Code.

   B.      Plaintiffs’ §101.101 Notice Letter Is A Condition Precedent to a Tort Claim
           Against Appellants’ Municipal Employer, the City of Weslaco. Therefore
           the Notice Letter Qualifies as an Exhibit Under Rule 91a and Rule 59.

                           SUMMARY OF THE ARGUMENT
        Plaintiffs have not, and cannot as a matter of law, present in pleading or
proof, a set of facts that overcomes the APPELLENTS immunity from suit.
        Plaintiffs’   Petition   makes   claims   against   APPELLANTS         DITTO,
PEMBLETON, and CASTANEDA for alleged actions taken within the course and
scope of their employment as law enforcement officers for the City of Weslaco,
Texas.      Although Plaintiffs have attempted to plead a claim against the
APPELLANTS individually only, in an effort to sidestep the government immunity
that otherwise attaches to them as police officers, the pleadings alone reveal that
the conduct complained about arises out of the APPELLANTS office as law
enforcement officers for the City of Weslaco.
        As further corroboration that the actions of the APPELLANTS necessarily
arise out of the exercise of law enforcement authority by the APPELLANTS,
Plaintiffs had filed with the City of Weslaco a Tort Claims Act Notice Letter, prior to
filing suit. A tort claims notice letter is a condition precedent to filing suit, and
Plaintiffs evidence an intent to pursue this claim as a Texas Tort Claims Act claim,
Because the City of Weslaco does not contest that the actions complained about
were taken within the course an scope of their employment as police officers,

Amended Brief for Appellants                                                  Page -3-
Plaintiffs were obligated to dismiss their claims against the individuals and
substitute in the City, when requested to do so, so that the Tort Claims Act analysis
could proceed accordingly.
      In short, at the trial court level, Plaintiffs were given multiple opportunities to
amend their petition and to substitute in the City of Weslaco instead, but Plaintiffs
elected not do so. Consequently, all applicable deadlines to amend their pleading
under the Texas Tort Claims Act have long since passed. As a result, all of Plaintiffs
claims against the APPELLANTS should have been dismissed by the trial court
and the Plaintiffs are barred from bringing any claims regarding the same subject
matter against the City of Weslaco as well.
                               STATEMENT OF FACTS
      A.     Underlying Pleaded Factual Background
      On March 26, 2015, Plaintiffs brought suit alleging intentional torts against
the APPELLANTS in connection with a familial dispute that led to a Weslaco Police
Department investigation and eventually the subsequent arrest of Plaintiff Jessy
Campos. CR at 4. On April 20, 2015, APPELLANTS filed their answer asserting
among other things governmental, sovereign, and official immunity. CR at 10.
      According to Plaintiffs’ live pleading, named APPELLANT KARINA
CASTANEDA and Plaintiff Jessy Campos are the divorced parents of a child
(hereinafter “John Doe”), custody of whom is at the heart of this lawsuit. CR at 5.
Plaintiffs allege that Jessy Campos placed an audio recording device in the shoe
of John Doe due to concerns that the child was being subjected to abuse by
APPELLANT CASTANEDA “and/or others.” CR at 6; Apdx., Exh. B.
      The lawsuit then alleges that after discovering the recording device
Castaneda “used her position as a police officer” to file charges and secure the
arrest of Plaintiff Jessy Campos. CR at 6 (emphasis added). Plaintiffs further allege
that Weslaco police officers and the named APPELLANTS DITTO and
PEMBLETON cooperated with CASTANEDA and “assisted in falsely prosecuting
and falsely arresting Plaintiff Jessy Campos.” Id.

Amended Brief for Appellants                                                    Page -4-
      Based on these allegations, Plaintiffs bring intentional torts including
malicious prosecution, abuse of process, and civil conspiracy charges against the
APPELLANTS for actions that necessarily fall within the course and scope of their
employment as law enforcement officers. In other words, the suit is premised for
actions by the APPELLANTS taken in their capacity as City of Weslaco law
enforcement officers and employees. CR at 4-8.

      B.     Procedural History
      On April 30, 2015, APPELLANTS filed a Rule 91a Motion to Dismiss seeking
dismissal of the lawsuit against them and requesting that Plaintiffs substitute their
employer, the City of Weslaco, as the Defendant §101.106(f) of the Texas Tort
Claims Act. CR at 13.
      APPELLANTS later filed a supplement to the Rule 91 Motion on May 12,
2015, providing a copy of the Tort Claims Notice Act letter that Plaintiffs had sent
to the City prior to the filing of the lawsuit. CR at 19; Apdx, Exh. A.
      On May 18, 2015, Plaintiffs filed Responses to the Defendants’ Rule 91a
Motion, making it clear that they had no intentions of complying with §101.106(f)
of the Tort Claims Act. CR at 25 and 30. Plaintiffs instead asserted that they
intended to pursue their lawsuit against the APPELLANTS in their “individual
capacities” only. Plaintiffs insist that they intend to sue the APPELLANTS in a
private capacity only, even though the actions complained about necessarily fall
with the course and scope of their jobs as police officers. By ignoring material
facts, Plaintiffs contend that the governmental aspect of the actions complained
about do not trigger the immunities that would otherwise apply to the
APPELLANTS. CR at 25. Thus Plaintiffs argued that because they did not literally
use the words “official capacity” or specifically name the City of Weslaco as a party,
APPLLANTS have no right to assert immunity under the TTCA. Id.
      On June 3, 2015, more than 30 days after the City’s Rule 91a Motion had
been filed, and before the Plaintiffs had made any attempt to re-plead to dismiss
the individual APPELLANTS, and substitute in the City of Weslaco, APPELLANTS

Amended Brief for Appellants                                                 Page -5-
filed a Reply to Plaintiffs’ Response to the Rule 91a Motion. APPELLANTS pointed
out to the trial court that, not only had the Plaintiffs sued the APPELLANTS as to
official actions taken in their capacity as police officers, but that Plaintiffs had failed
to comply with §101.106(f) of the Tort Claims Act. Therefore, the law required
immediate dismissal of each of the individual APPELLANTS. CR at 36.
      On June 8, 2015, the court heard arguments on the APPELLANTS’ Rule 91a
Motion but did not make a ruling and instead re-set the hearing. Arguments on this
motion were not taken up again until August 5, 2015, well after the 45 day ruling
deadline contained in the Rules however, the court again declined to make a ruling
and the hearing was re-set once again. See TRCP 91a.
      Seeing no compliance from the trial court with the Rules, APPELLANTS then
also filed a Jurisdictional Plea on October 9, 2015, again asserting that Plaintiffs’
failure to comply with §101.106(f) of the Tex. Civ. Prac. & Rem. Code required
immediate dismissal of the APPELLANTS as currently named. CR at 41. With the
jurisdictional plea, APPELLANTS attached as evidence to support the Plea
consisting, of the Tort Claims Act letter sent by the Plaintiffs to the City of Weslaco,
as well as an affidavit signed by then Interim Police Chief Ted Walensky providing
testimonial proof that the actions of the APPELLANTS were taken within the course
and scope of their officers as law enforcement personnel. CR at 50 and 53; See
Apdx Exh. A and Exh. C.
      The Tort Claims Act notice letter identified APPELLANTS as Weslaco Police
Officers and put the City on statutory notice that it was about to be sued for the
official actions of its police officers. CR at 50. The affidavit signed by Interim Police
Chief Walensky confirmed that APPELLANTS DITTO, PEMBLETON, and
CASTANEDA “were acting wholly and completely within the course and scope of
their employment with the City of Weslaco as police officers.” CR at 53; See Apdx
Exh. A and Exh. C. Plaintiffs filed nothing in response to the APPELLANTS’
Jurisdictional Plea.



Amended Brief for Appellants                                                     Page -6-
      On October 21, 2015, the court heard arguments on the City’s Rule 91a
Motion to Dismiss as well as the Jurisdictional Plea. Despite the fact Plaintiffs
never responded to the Jurisdictional Plea, and presented no evidence at the
hearing either, the trial court denied both dispositive actions. The trial court signed
an Order denying the Defendants’ Jurisdictional plea on October 21, 2015. The
next day, the trial court also signed an Order denying the Defendants’ Rule 91a
Motion to Dismiss on October 22, 2015. 2 CR at 54 and 55.
      APPELLANTS timely filed their notice of interlocutory appeal on October 29,
2015, appealing from both denial orders. CR at 56.
      Subsequently, the trial court signed another Order, apparently submitted by
Plaintiffs, which was entitled as a denial of the Motion to Dismiss, but which in the
body of the Order purported to deny the jurisdictional plea.         Supp. CR at 4.
APPELLANTS, out an abundance of caution, filed another Notice of Appeal from
this latest Order on November 18, 2015, and also requested to supplement the
Clerk’s Record.
      This Court bifurcated the appeals into two cause numbers, one related to
the motion to dismiss, and one related to the jurisdictional plea. Because the two
matters are procedurally intertwined, APPELLANTS requested that the two
matters be consolidated.       This Court granted the motion to consolidate as to
briefing only.    Therefore, this brief addressed the appellate issues in the two
appellate causes.




2 City Defendants request that the Court take judicial notice that the ruling on City
Defendants’ Motion to Dismiss was not timely made by the trial court pursuant to Rule
91a.3(c) of the TRCP.

Amended Brief for Appellants                                                  Page -7-
                      STANDARD OF APPELLATE REVIEW

      A.     THE PLEA TO THE JURISDICTION
      A plea to the jurisdiction is a dilatory plea, which is employed to challenge
the trial court’s subject matter jurisdiction over a cause of action. Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); City of El Campo v. Rubio, 980
S.W.2d 943, 945 (Tex. App.–Corpus Christi 1998, pet. dism'd w.o.j.). Because the
determination of subject matter jurisdiction is a question of law, this Court reviews
the trial court’s decision under a de novo standard of review. Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
      Dismissing a cause of action based on a plea to the jurisdiction is proper
when incurable jurisdictional defects are shown on the face of plaintiff’s pleadings.
El Paso Cmty. Partners v. B&G/Sunrise Joint Venture, 24 S.W.3d 620, 623 (Tex.
App.-Austin 2000, no pet.); Flowers v. Lavaca County Appraisal Dist., 766 S.W.2d
825, 827 (Tex. App.-Corpus Christi 1989, writ denied). However, a court deciding
a plea to the jurisdiction is not required to look solely to the pleadings but may
consider evidence and must do so when necessary to resolve the jurisdictional
issues raised. Blue, 34 S.W.3d at 555. The court should, of course, confine itself
to the evidence relevant to the jurisdictional issue. Id.

      B.     THE RULE 91A MOTION TO DISMISS
      The standard of review for a Rule 91a motion to dismiss concerning a
question of law is de novo. See City of Dallas v. Sanchez, 449 S.W.3d 645, 649
(Tex. App. 2014); Dailey v. Thorpe, 445 S.W.3d 785, 788–89 (Tex.App.—Houston
[1st Dist.] 2014, no pet. h.); Wooley v. Schaffer, 447 S.W.3d 71, 74–76 (Tex.App.—
Houston [14th Dist.] 2014, no pet. h.); GoDaddy.com, LLC v. Toups, 429 S.W.3d
752, 754 (Tex.App.—Beaumont 2014, pet. filed).
      In this context, review of a Rule 91a Motion to Dismiss is treated like a Plea
to the Jurisdiction. Sanchez, 449 S.W.3d at 649-50. See also Austin State Hosp.
v. Graham, 347 S.W.3d 298, 301 (Tex.2011) (appeal may be taken from orders


Amended Brief for Appellants                                                  Page -8-
denying assertion of immunity, regardless of procedural vehicle used); City of
Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 n. 1 (Tex.App.—Austin 2014, no
pet.)f (reviewing trial court's order on Rule 91a motion “using the standard of review
for pleas to the jurisdiction that challenge only the pleadings”); Wooley, 447 S.W.3d
at 75 (finding Rule 91a motions “unique,” but “analogous to pleas to the
jurisdiction”).
       Pursuant to Rule 91a, “a party may move to dismiss a cause of action on the
grounds that it has no basis in law or fact.” TRCP 91a.1.:
       A cause of action has no basis in law if the allegations, taken as true,
       together with inferences reasonably drawn from them, do not entitle the
       claimant to the relief sought.” Id.
       The motion must be filed within 60 days after Plaintiffs’ First Amended
Original Petition was filed and the court must either grant or deny this motion within
45 days after it is filed. TRCP 91a.3(a) and (c). 3
                                       ARGUMENT
Issue Presented #1: The Trial Court Erred in Denying the Appellants’
     Jurisdictional Plea Because the Court Lacked Subject Matter
     Jurisdiction over Plaintiffs Claims.
            Under §101.106(f), Tex. Civ. Prac. & Rem. Code, Weslaco Law
            Enforcement Officers and Employees, Brooks Ditto, Billy
            Pembleton, and Karina Castaneda Should Have Been Dismissed
            From the Lawsuit.

       The City of Weslaco is a home-rule municipality organized under the Texas
Constitution. As such, the City is authorized to organize its own police force. Tex.
Local Gov’t Code §341.003. 4 Plaintiffs have sued City of Weslaco police officers
DITTO, PEMBLETON, and CASTANEDA in for actions taken within the course and

3 Rule 91a was adopted by the Texas Supreme Court in March 2013 in response to a
requirement by the Texas Legislature reflected in §22.004(g), Texas Gov’t Code, which
provides that the Texas Supreme Court shall adopt Rules providing for summary
disposition of cases with no basis in law or fact (emphasis added).
4 The City Defendants request that the Court take judicial notice of this juridical fact under

Rule 201, Tex. R. Evid.


Amended Brief for Appellants                                                        Page -9-
scope of their employment as law enforcement officers for the City of Weslaco,
Texas.
       Under §101.106(f), Tex. Civ. Prac. & Rem. Code, Plaintiffs claims must
instead be directed as claims against the employer City of Weslaco only, and on
the employees’ motion the suit against the employees must be dismissed:
       (f) 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.
       The Texas Supreme Court has unequivocally interpreted §101.106(f). “A suit
against an employee in his official capacity is not a suit against the employee; it is,
in all but name only, a suit against the governmental unit.” Texas Adjutant
General's Office v. Ngakoue, 408 S.W.3d 350, 357 (Tex. 2013). “Subsection (f)
provides the appropriate avenue for dismissal of an employee who is considered
to have been sued in his official capacity.” Alexander v. Walker, 435 S.W.3d 789,
791 (Tex. 2014).
       There is no question that Plaintiffs seek to hold individually named
APPELLANTS liable for their actions as Weslaco police officers. This is evidenced
by Plaintiffs’ statements: “Karina Castaneda used her position as a police officer
with     the   Weslaco     police   department,”     and,    “Brooks     Ditto,   Billy
Pembleton…cooperated with Defendant Karina Castaneda and assisted in falsely
prosecuting and falsely arresting Plaintiff Jessy Campos.” CR at 6, (emphasis
added). Further, Plaintiffs bring actions for malicious prosecution, abuse of
process, and civil conspiracy relating to the arrest and attempted prosecution of
Jessy Campos. CR at 6-7; Apdx. Exh. B.
       Plaintiffs’ assertion of claims against these individual Defendants for specific
actions taken in the course and scope of their duties as Weslaco police officers is


Amended Brief for Appellants                                                 Page -10-
further irrefutably established through their pre-suit October 3, 2014, notice of claim
under §101.101 of the Texas Civil Practice and Remedies Code. See Ex. A. Under
the Texas Tort Claims Act, notice provided under §101.101 of the Tex. Civ. Prac.
& Rem. Code is a jurisdictional requirement to filing a suit against a governmental
entity. Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-
Arancibia, 324 S.W.3d 544, 546, 548 (Tex. 2010). Defendants previously attached
Plaintiffs’ §101.101 Notice letter to its Rule 91 Motion to Dismiss, as such
constitutes a pleading.
      Plaintiff served a §101.101 Notice letter to City of Weslaco Mayor David
Suarez on October 3, 2014. CR at 22. Presumably, this notice was sent within the
(6) month statutory required timeframe for the sole purpose of satisfying the
jurisdictional requirement to file suit against the City. Plaintiff even styled this letter
as a “Notice pursuant to §101.101 of Texas Civil Practice and Remedies Code.”
CR at 22; Apdx. Exh. A.
      Plaintiffs’ notice letter explicitly states that City Defendants Castaneda, Ditto,
and Pembleton are police officers and that they were at all times operating in the
course and scope of their employment as police officers. CR at 22-23.
Furthermore, there is no question as to the Plaintiffs intent to hold the City of
Weslaco responsible for the alleged actions as the letter goes on to state, “In
addition, my client(s) have instructed me to proceed with a civil lawsuit against the
City of Weslaco.” CR at 23
      Lastly, and even more clearly establishing that each of the APPELLANTS
was in the course and scope of their duties with the City for the alleged actions
taken as referenced by the Plaintiffs in Plaintiffs’ lawsuit, APPELLANTS attached
competent evidence that with regard to all of their actions taken in regards to the
investigation and arrest of Plaintiff Jessy Campos or as pled by Plaintiffs, each of
the individual Defendant officers was acting in the course and scope of their duties
with the City of Weslaco police department and engaged in no wrongdoing in
performing their duties as police officers. CR at 53.

Amended Brief for Appellants                                                    Page -11-
      It is well known that in 2003 the Texas Tort Claims Act underwent substantial
revisions particularly to §101.106’s Election of Remedies. See §101.106, Tex. Civ.
Prac. & Rem. Code and Franka v. Velasquez, 332 S.W.3d 367, 384 (Tex. 2011).
Under these amendments, once the defendant employee files a motion under
subsection (f), the plaintiff must either “dispute that [the employee] acted in his
official capacity” or “implicitly concede[ ] that he had sued [the employee] in his
official capacity only.” Molina v. Alvarado, 463 S.W.3d 867, 871 (Tex. 2015) citing
Texas Adjutant General's Office v. Ngakoue, 408 S.W.3d 350, 360 (Tex. 2013).
      APPELLANTS first invoked their right to dismissal under §101.106(f) in their
Rule 91a Motion to Dismiss and then again in their Jurisdictional Plea. While
Plaintiffs filed a response to City Defendants’ Rule 91a Motion to Dismiss they
failed to respond at all to the Jurisdictional Plea.
      The Response that Plaintiffs did file relied solely on the fact that they did not
literally use the term “official capacity” and did not specifically name the City of
Weslaco as a party in their petition. CR at 25-28, and 30-31. Plaintiffs then followed
this argument by asserting that “a plaintiff can choose whom he will sue and what
causes of action he will assert.” CR at 25. This singular argument did not however,
address §101.106(f) or in any way dispute that the APPELLANTS alleged actions
were made in their official capacity. CR at 25-28, and 30-31. Instead, Plaintiffs
position appears to be that even though they are admittedly claiming damages
from the alleged actions of APPELLANTS taken in the course and scope of their
employment, Plaintiffs should be allowed to plead those claims against the officers
in their individual capacity.
      While it is true that a plaintiff does have some control over their pleadings,
that control does not extend to simply ignoring key material facts bearing on the
application of the Tort Claims Act and issues of immunity. Here, Plaintiffs seek to
deal with statues like §101.106(f), which is specifically designed to protect public
employees when they are sued for activity that falls within the course and scope of
their employment, by simply ignoring it.

Amended Brief for Appellants                                                 Page -12-
      One of the primary purposes of the Texas Tort Claims Act, and §101.106 in
particular, is to protect governmental employees acting in the scope of
employment. Texas Adjutant General's Office v. Ngakoue, 408 S.W.3d at 357.
Specifically, with regard to §101.106(f), the court has stated, “In enacting
subsection (f), the Legislature “foreclose[d] suit [under the TTCA] against a
government employee in his individual capacity if he was acting within the scope
of employment.” Id. This is especially true in cases involving police officers.
      The applicability of subsection (a) versus subsection (f) of §101.106 turns
on whether the suit is considered to be against the officers in their individual or
official capacities. This requires a court to make a determination as to 1) whether
the alleged conduct was within or without the scope of the officers’ employment.
Alexander, 435 S.W.3d at 791. The Texas Tort Claims Act defines the term “scope
of employment” as the performance for a governmental unit of the duties of an
employees’ office or employment and includes being in or about the performance
of a task lawfully assigned to an employee by a competent authority. Id. The
Restatement (Third) of Agency provides additional clarity by defining the term
negatively: an employee’s act is not within the scope of employment when it occurs
within an independent course of conduct not intended by the employee to serve
any purpose of the employer. Id.
      Thus, as defined by the Texas Supreme Court, and with the factual
pleadings submitted by the Plaintiffs, Notice of Claims letter and the affidavit of Ted
Walenskey, there is no dispute that Plaintiffs’ suit is based on conduct within the
general scope of each of the individual Defendants’ employment with the City.
      In the instant case, Plaintiffs attempt to plead around well-established
immunity laws and sue APPELLANTS in their individual capacity for actions that
were performed in the course and scope of their employment as City of Weslaco
Police Officers, and Plaintiffs make no argument to the contrary. Because
APPELLANTS properly invoked their right to dismissal under §101.106(f) and



Amended Brief for Appellants                                                 Page -13-
Plaintiffs did not dispute that APPELLANTS acted in their official capacity
APPELLANTS must be dismissed individually.

           Because the Trial Court Erred in Not Considering the Appellants’
           Unchallenged Evidence the Court Erred in Denying Appellants’
           Jurisdictional Plea and As Such the Claims Against Appellants
           Should Be Dismissed In Their Entirety.

      A court deciding a plea to the jurisdiction is not required to look solely to the
pleadings but may consider evidence and must do so when necessary to resolve
the jurisdictional issues raised.     Bland Independent School Dist. v. Blue, 34
S.W.3d 547, 555 (Tex. 2000). Additionally, a court is to look at the allegations in
the petition and accept those allegations as true, unless the defendant establishes
that either: (1) that the plaintiff's pleadings, taken as true, affirmatively establish
that the trial court lacks subject matter jurisdiction over the suit; or, (2) that the
plaintiff pled fraudulently or in bad faith with the purpose of conferring jurisdiction,
where under the true facts of the case the trial court would not have jurisdiction.
Denton County v. Howard, 22 S.W.3d 113, 117-18 (Tex. App.-Fort Worth 2000).

      A Court may also consider evidence that the Plaintiff pled fraudulently or in
bad faith with the purpose of conferring jurisdiction, where under the true facts of
the case, the trial court would not have jurisdiction. Bland, 34 S.W.3d at 555. If
a plea to the jurisdiction challenges the existence of jurisdictional facts, a court
considers relevant evidence submitted by the parties when necessary to resolve
the jurisdictional issues raised even when those facts may implicate the merits of
the cause of action. City of Waco v. Kirwah, 298 S.W.3d 618, 622 (Tex.2009). If
the relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea as a matter of law. Id.
      APPELLANTS attached a §101.101 Notice Letter and an Affidavit signed by
former Interim Weslaco Police Chief Ted Walensky to their Jurisdictional Plea. CR
at 50 and 53. Plaintiffs failed to file any response whatsoever to the APPELLANTS’
attached evidence or the Plea itself.          Despite this, the trial court denied


Amended Brief for Appellants                                                  Page -14-
APPELLANTS’ Jurisdictional Plea in its entirety and stated that it “chose not to
consider any evidence presented.” The trial court’s order also makes a
determination that the APPELLANTS “had only been sued in their individual
capacity and not in their official capacity.” See Supplemental CR at 4.
      The trial court erred in both not considering the attached evidence and in
denying the APPELLANTS’ Plea. Plaintiffs’ notice letter shows unequivocally that
Plaintiffs had knowledge of the jurisdictional requirements involved with filing suit
against a governmental entity and its employees and that they purposefully pled
claims against the APPELLANTS whom they knew to be operating in the course
and scope of their employment. However, they now argue that they should be
allowed to proceed against the APPELLANTS individually. It is frivolous for the
Plaintiffs to proceed with this argument as they have already stated that the officers
were operating both in their official capacity and in the course and scope of their
employment. CR at 50. Furthermore, the APPELLANTS official employment as
police officers, and their alleged actions while taken in the course and scope of
their employment, make the very basis of the Plaintiffs’ entire case.
      Notwithstanding, Plaintiffs’ Petition on its own contains enough information
to dismiss the APPELLANTS. Plaintiffs’ notice letter and the affidavit however,
forever puts any argument to the contrary at rest. As such the trial court erred in
not considering APPELLANTS unchallenged evidence and the claims against the
APPELLANTS should be dismissed in their entirety.

           Appellants Are Immune From Plaintiffs’ Intentional Tort Claims.

      All of Plaintiffs’ claims against APPELLANTS are either intentional torts or
derivatives thereof. See Plaintiffs First Amended Petition. As a governmental
entity, the employing municipality remains immune from any and all intentional
torts. §101.057(2), Tex. Civ. Prac. & Rem. Code specifically states:
      “This chapter does not apply to a claim:
      (2) arising out of assault, battery, false imprisonment, or any other intentional
      tort.”

Amended Brief for Appellants                                                 Page -15-
      §101.057(2), Tex. Civ. Prac. & Rem. Code.
In other words, immunity cannot be waived for intentional torts under any
circumstance. “The TTCA does not, however, waive immunity for intentional torts.”
Paz v. Weir, 137 F.Supp.2d 782 (2001). “The plaintiff's claims fail for another
reason. Most of the plaintiff's allegations are for intentional torts—false arrest,
malicious prosecution, defamation. The Tort Claims Act does not waive immunity
for intentional torts of the City.” City of Hempstead v. Kmiec, 902 S.W.2d 118, 122
(Tex. App. 1995). “Claims of false imprisonment, false arrest, trespass, coercion,
and abuse of process and authority are intentional torts for which a governmental
entity is immune.” Sampson v. Texas Dep't of Pub. Safety, No. 09-12-00537-CV,
2013 WL 3488255, at *1 (Tex. App. July 11, 2013) Civil conspiracy is a common
law intentional tort. Fontenot v. Stinson, 369 S.W.3d 268, 274 (Tex. App. 2011)
aff'd on other grounds, 435 S.W.3d 793 (Tex. 2014).
      Additionally, Plaintiffs attempts to bring a separate cause of action for loss
of consortium on behalf of Plaintiff Judith Campos stemming from the arrest of
Jessy Campos. See Plaintiffs’ First Amended Petition. APPELLANTS are immune
from such a claim as the claim itself is a derivative of the alleged intentional torts.
Texas courts have specifically stated that loss of consortium is not a stand-alone
tort under the TTCA. “We hold that Martin Rosenzweig's claims for loss of
companionship and consortium, mental anguish, and loss of household services
are derivative of the injuries sustained by his wife and do not constitute additional
“bodily injury” under the Tort Claims Act.” Rosenzweig v. Dallas Area Rapid
Transit, 841 S.W.2d 897, 898 (Tex. App. 1992), writ denied (Mar. 3, 1993). “A loss
of consortium claim is derivative of the other spouse's personal injury.” Sullivan v.
Aransas Cnty. Navigation Dist., No. 13-10-00135-CV, 2011 WL 61846, at *6 (Tex.
App. Jan. 6, 2011).
      In the instant case, Plaintiffs’ entire petition centers on the alleged improper
arrest of Jessy Campos. It is from that arrest that Plaintiffs formally complain of
loss of consortium, malicious prosecution, abuse of process, and civil conspiracy

Amended Brief for Appellants                                                 Page -16-
all of which are intentional torts or a derivative of an intentional tort. As confirmed
above, Texas law has stated clearly and unambiguously that governmental
immunity is not waived for intentional torts. Furthermore, Plaintiff Judith Campos’
claim for loss of consortium and the like do not waive governmental immunity as
those claims are derivative of Plaintiff Jessy Campos’ intentional tort claims.

             Plaintiffs Cannot Now Amend Their Suit Against the Employer, the
             City Of Weslaco, and As Such All Claims Against Appellants Must
             Be Dismissed With Prejudice.

      APPELLANTS first invoked their right to dismissal under §101.106(f) when
they filed their Rule 91a Motion to Dismiss back in April, 2015. The 30 day deadline
for Plaintiffs to amend their pleadings under §101.106(f) have long since run and
Plaintiffs are now as a matter of law unable to bring any claims regarding the same
subject matter against the City of Weslaco. See Huntsville Independent Sch. Dist.
v. Briggs, 262 S.W.3d 390, 395 (Tex. App. 2008) (Plaintiff’s failure to timely amend
pleadings to substitute governmental entity for employee forever barred Plaintiff
from filing any suit against the entity regarding the same subject matter).
      As such, Plaintiffs’ claims against APPELLANTS should be dismissed with
prejudice.
Issue Presented #2: The Trial Court Erred in Denying the City Defendant’s
      Rule 91a Motion to Dismiss Because Individually Named Defendants
      Brooks Ditto, Billy Pembleton, and Karina Castaneda Were Sued for
      Actions Taken Within the Course and Scope of Their Employment as
      Weslaco Police Officers and Thus Immune From Suit.
      APPELLANTS herein incorporate by reference all of the foregoing points of
authority and arguments.

      Plaintiffs’ Claims against Appellants Have No Basis In Law Because
      the Court Lacks Subject Matter Jurisdiction Under TTCA §101.106(f).

      Looking solely at the Plaintiffs’ live petition, it is apparent that that Plaintiffs
seek to hold individually named APPELLANTS liable for their actions that these
defendants can only have taken while cloaked with a commission as Weslaco


Amended Brief for Appellants                                                   Page -17-
police officers. This is evidenced by Plaintiffs’ statements: “Karina Castaneda used
her position as a police officer with the Weslaco police department,” and, “Brooks
Ditto, Billy Pembleton…cooperated with Defendant Karina Castaneda and
assisted in falsely prosecuting and falsely arresting Plaintiff Jessy Campos.” CR at
6, (emphasis added). Further, Plaintiffs bring actions for malicious prosecution,
abuse of process, and civil conspiracy relating to the arrest and attempted
prosecution of Jessy Campos, charges which confirm the course and scope nature
of the claims brought against the APPELLANTS. CR at 6-7; Apdx, Exh. B.
      APPELLANTS filed their §101.106(f) Motion to Dismiss in conjunction with
their Rule 91a Motion to Dismiss, asserting that APPELLANTS were sued for
actions in the course and scope of their employment as police officers and
therefore Plaintiffs’ claims were required to be directed against the employer, the
City of Weslaco, instead. CR at 16.
      Under Statutory and Supreme Court law, Plaintiffs were then required to
dispute that the APPELLANTS’ alleged actions were made in their official capacity
or implicitly concede that suit was being brought in official capacity only and
substitute the City of Weslaco for the individually named APPELLANTS. Molina,
463 S.W.3d at 871. Plaintiffs did neither and instead chose to argue that the literal
language of their pleading should control, regardless of the existence of material
facts, and regardless of applicable immunity precepts.
      It is well established that filing suit against the government or government
employees operating in the course and scope of their employment pose
irrevocable consequences to a plaintiff if not pled correctly. Mission Consol. Indep.
Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). “A plaintiff must proceed
cautiously before filing suit and carefully consider whether to seek relief from the
governmental unit or from the employee individually.” Molina v. Alvarado, 463
S.W.3d 867, 871 (Tex. 2015).
      The courts however, acknowledge that there may be circumstances where
a plaintiff may not know at the outset if the employees were in the course and

Amended Brief for Appellants                                               Page -18-
scope of their employment. Texas Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d
350, 359 (Tex. 2013). But these circumstances do not include situations like the
instant case where the plaintiff already has factual knowledge of the Defendants’
official positions with the City of Weslaco:
       “But a central goal of the TTCA as a whole is to allow certain types of suits
       against the government; as noted above, the current version of §101.106
       became necessary because plaintiffs began suing government employees
       as individuals to avoid the TTCA’s limitations.”
Ngakoue, 408 S.W.3d at 359 (emphasis added).
       Here, Plaintiffs’ case depends on the APPELLANTS’ employment as police
officers for the City of Weslaco and Plaintiffs have not and cannot argue to the
contrary. Furthermore, Plaintiffs’ Petition makes this fact abundantly clear and any
attempt by the Plaintiffs to continue individual capacity claims against the
APPELLANTS based on the facts already known to the Plaintiffs, constitutes a
clear intention to circumnavigate the immunity laws under the TTCA.
       For all of these foregoing reasons, the Plaintiffs’ claims against
APPELLANTS in their entirety should be dismissed for lack of subject matter
jurisdiction.

            Plaintiffs’ §101.101 Notice Letter Is A Condition Precedent to a Tort
            Claim Against Appellants’ Municipal Employer, the City of
            Weslaco. Therefore the Notice Letter Qualifies as an Exhibit Under
            Rule 91a and Rule 59.

       Pursuant to Rule 91a APPELLANTS may attach pleading exhibits permitted
under Rule 59 of the TRCP.
       “the court may not consider evidence in ruling on the motion and must decide
       the motion based solely on the pleading of the cause of action, together with
       any pleading exhibits permitted by Rule 59.”
Tex. R. Civ. P. 91a.6 (emphasis added).

       Additionally, although an exhibit may be attached to the pleadings by the
Plaintiff it can also be attached by the Defendants:

Amended Brief for Appellants                                              Page -19-
      “Notes, accounts, bonds, mortgages, records, and all other written
      instruments, constituting, in whole or in part, the claim sued on, or the matter
      set up in defense, may be made a part of the pleadings by copies thereof,
      or the originals, being attached or filed and referred to as such.”
TRCP 59 (emphasis added).
      As previously stated, notice provided under §101.101 of the Tex. Civ. Prac.
& Rem. Code is a jurisdictional requirement to filing a suit against a governmental
entity. Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-
Arancibia, 324 S.W.3d 544, 546, 548 (Tex. 2010).
      Texas courts have specifically allowed exhibits to the pleadings in cases
involving notice issues under the Texas Tort Claims Act. See City of Celina v. Blair,
171 S.W.3d 608 (Tex. App. 2005) (Police reports for a motorcycle accident became
part of the pleadings for purposes of establishing notice under CPRC §101.101).
And the Court can take judicial notice of this fact as well. See Tex. R. Evid. 201.
      Here, the Plaintiffs sent their notice letter with the express purpose of
notifying their intent to sue the City of Weslaco for the alleged official actions of the
APPELLANTS. CR at 22. The tort claims notice letter demonstrates that Plaintiffs
themselves were treating APPELLANTS as working within the course and scope
of their employment as law enforcement personnel. Plaintiffs’ subsequent petition
confirms this position. CR at 22.
      However, because the law enforcement conduct of the APPELLANTS does
not otherwise fall within one or more of the exceptions to government immunity,
Plaintiffs pleading necessarily failed as a matter of law. The only action available
to the Court under Rule 91a was to dismiss the lawsuit for failure to state a
cognizable claim for relief.
      APPELLANTS respectfully point out, that under the specific provisions of
Rule 91a, TRCP, the trial court must rule on such a motion within 45 days of when
the motion is filed. This the trial court did not do, in spite of APPELLANTS efforts
to get the trial court to do so. See 91a.3(c), TRCP.



Amended Brief for Appellants                                                  Page -20-
       Because Rule 91a does not specify a remedy for the trial court’s failure to
abide by this provision, APPELLANTS then filed an independent plea to the
jurisdiction essentially addressing the same point, albeit in a different fashion, in
an effort to get the trial court to consider the address the essential irregularities of
Plaintiffs’ pleading efforts.
                                PRAYER FOR RELIEF
       THEREFORE, based on any one or more of the reasons outlined above,
APPELLANTS,         BROOKS       DITTO,    BILLY     PEMBLETON         and    KARINA
CASTANEDA, Individually and Officially, do hereby REQUEST AND PRAY that
this Honorable Court REVERSE the trial court’s orders denying not only the
Jurisdictional Plea filed by APPELLANTS, but REVERSE the denial of the Rule
91a Motion to Dismiss as well, and also RENDER a Final Judgment of dismissal
of Plaintiffs claims and purported causes of action for lack of subject matter
jurisdiction.


       APPELLANTS also REQUEST and PRAY for any further and additional
relief to which APPELLANTS are entitled, at law or in equity, as applicable.
       SIGNED this 16th day of DECEMBER, 2015.
                                        Respectfully Submitted,
                                        DENTON NAVARRO ROCHA BERNAL
                                        HYDE & ZECH
                                        A Professional Corporation
                                        701 E. Harrison, Ste. 100
                                        Harlingen, Texas 78550
                                        956/421-4904
                                        956/421-3621 (Fax)

                                 By:    /s/ Ricardo J. Navarro
                                        RICARDO J. NAVARRO
                                        Attorney In Charge
                                        State Bar No. 14829100
                                        Email: rjnavarro@rampage-rgv.com


Amended Brief for Appellants                                                 Page -21-
                               By:   /s/ John-Michael Hayward
                                     JOHN-MICHAEL HAYWARD
                                     State Bar No. 24087693
                                     Email: jmhayward@rampage-rgv.com
                                     COUNSEL FOR APPELLANTS
                                     BROOKS DITTO, BILLY PEMBLETON
                                     AND KARINA CASTANEDA,
                                     Individually and Officially


                        CERTIFICATE OF COMPLIANCE
       Undersigned counsel for the Defendants / Appellants, Brooks Ditto, Billy
Pembleton and Karina Castaneda hereby certifies that this Brief complies with
Texas Rule of Appellate Procedure 9.4 and contains approximately 8,050 words,
inclusive of everything in the Brief.

                                     /s/ Ricardo J. Navarro
                                     RICARDO J. NAVARRO
                                     JOHN-MICHAEL HAYWARD


                          CERTIFICATE OF SERVICE

      Pursuant to TRAP 9.5, I certify that a true copy of this document has been
sent served in accordance with one or more of the methods of service recognized
by the Texas Rules of Appellate Procedure to the counsel or the parties identified
below on the 16th day of DECEMBER, 2015.

      Mr. George Durham
      Attorney At Law
      517 W. Nolana, Ste. 6
      McAllen, Texas 78501
      Counsel for Appellees



                                     /s/ Ricardo J. Navarro
                                     RICARDO J. NAVARRO
                                     JOHN-MICHAEL HAYWARD




Amended Brief for Appellants                                            Page -22-
                              NO. 13-15-00517-CV
                              NO. 13-15-00523-CV

                      IN THE COURT OF APPEALS
               FOR THE THIRTEENTH DISTRICT OF TEXAS
                         AT EDINBURG, TEXAS
             ___________________________________________

     BROOKS DITTO, BILLY PEMBLETON AND KARINA CASTANEDA
                     Individually and Officially
                            Appellants

                                        VS.

                  JUDITH CAMPOS AND JESSY CAMPOS
                               Appellees
              __________________________________________

                Interlocutory Appellate Proceeding from the
             County Court At Law No. 1 - Hidalgo County, Texas

          _________________________________________________

              APPENDIX TO APPELLANTS AMENDED BRIEF
          ________________________________________________

                                       RICARDO J. NAVARRO
                                       JOHN-MICHAEL HAYWARD
                                       DENTON, NAVARRO, ROCHA
                                          BERNAL, HYDE & ZECH, P.C.
                                       701 E. Harrison St., Ste. 100
                                       Harlingen, Texas 78550
                                       956/421-4904
                                       956/421-3621 (Fax)

                                       COUNSEL FOR APPELLANTS
                                       BROOKS DITTO, BILLY PEMBLETON
                                       AND KARINA CASTANEDA,
                                       Individually and Officially




Appendix to Appellants Amended Brief                                   -1-
                                APPENDIX INDEX

A.    Tort Claims Act Notice Pursuant to §101.101 of Texas Civil Practice and
      Remedies Code dated October 1, 2014 and directed to City of Weslaco
      Mayor David Suarez (CR @ pp. 50-51).

B.    Plaintiffs First Amended Petition (CR @ 4 – 8).

C.    Affidavit of Ted Walensky, appended to Appellants Jurisdictional Plea (CR
      @ 53)




Appendix to Appellants Amended Brief                                        -2-
APPENDIX “A”
50
51
APPENDIX “B”
Accepted by: Ester Espinoza                                                                Electronically Submitted
                                                                                             3/26/2015 12:07:17 PM
                                                                                       Hidalgo County Clerks Office



                                             CAUSE NO. CL-15-0914-A

            JUDITH CAMPOS AND JESSY CAMPOS §                   IN THE COUNTY COURT OF LAW
                                           §
                                           §
                            Plaintiff,     §
                                           §
            VS.                            §                   NO. 1
                                           §
            SEASHELL GERMAINE, BROOKS      §
            DITTO, BILLY PEMBLETON,        §
            KARINA CASTANEDA AND DANNY     §
            ELIZONDO                       §
                                           §
                                           §
                            Defendants.    §                   HIDALGO COUNTY, TEXAS

                                     PLAINTIFFS’ FIRST AMENDED PETITION

            TO THE HONORABLE JUDGE OF SAID COURT:

                   NOW COMES JUDITH CAMPOS and JESSY CAMPOS, Plaintiff in the above

            styled and numbered cause, and files this their PLAINTIFFS’ ORIGINAL PETITION,

            complaining of SEASHELL GERMAINE, BROOKS DITTO, BILLY PEMBLETON,

            KARINA CASTANEDA, AND DANNY ELIZONDO, and for cause of action would

            respectfully show unto the Court as follows:

                                                   I.PARTIES

                   1.     Plaintiffs are residents of Hidalgo County, Texas.

                   2.     Defendant SEASHELL GERMAINE is a resident of Hidalgo County,

            Texas, who may be served at the following address: 1016 Nora Drive, Edinburg, Texas

            78532 or 1 S Cage Blvd. Pharr, Texas 78577.

                   3.         Defendant BROOKS DITTO is a resident of Hidalgo County, Texas, who

            may be served at his employer’s following address: 901 North Airport Drive, Weslaco,

            Hidalgo County, Texas 78596.

                                                                                                 4
                                                           1
Accepted by: Ester Espinoza                                                                     Electronically Submitted
                                                                                                  3/26/2015 12:07:17 PM
                                                                                            Hidalgo County Clerks Office



                   4.      Defendant BILLY PEMBLETON is a resident of Hidalgo County, Texas,

            who may be served at his employer’s following address:          901 North Airport Drive,

            Weslaco, Hidalgo County, Texas 78596.

                   5.      Defendant KARINA CASTANEDA is a resident of Hidalgo County, Texas,

            who may be served at the following address: 1110 Valley View Dr. Apt. #D or her

            employers location at 901 North Airport Drive, Weslaco, Hidalgo County, Texas 78596.

                   6. Defendant DANNY ELIZONDO is a resident of Hidalgo County, Texas, who

            may be served at the following address: 1011 Valley View Dr. Weslaco, Texas 78596.



                                           II. JURISDICTION AND VENUE

                   7.      This Court possesses jurisdiction because the amount in controversy is

            within the jurisdictional limits of this Court.

                   8.      Venue is proper in Hidalgo County because Plaintiff’s cause of action or a

            part thereof accrued in Hidalgo County.

                   9.      Plaintiff seeks monetary relief over $100,000 but not more than $200,000,

            non monetary relief, and a demand for judgment for all the other relief to which Plaintiff

            deems himself entitled.

                                              III. UNDERLYING FACTS

                   10.     Plaintiff Judith Campos is the step-mother of the child. Plaintiff Jessy

            Campos and Defendant Karina Castaneda are the parents of a child.

                   11.     Every time the child was in the custody of Defendant Karina Castaneda,

            he was injured.      Furthermore, Plaintiffs believed that Defendant Karina Castaneda




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Accepted by: Ester Espinoza                                                                  Electronically Submitted
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            and/or others were abusing the child. As a result, Plaintiffs placed a recording device

            into the child’s shoe. Such device is expressly authorized by law.

                   12.    Defendant Seashell Germaine found the device in Pharr, Texas and

            informed Defendant Karina Castaneda of the existence of the device. Although any

            criminal complaint was required to be filed in Pharr, Texas where the offense occurred,

            Defendant Karina Castaneda used her position as a police officer with the Weslaco

            police department and had Weslaco police department file charges against and obtain

            the arrest of Plaintiff Judith Campos’ husband, Plaintiff Jessy Campos.

                   13.    Defendants Seashell Germaine, Brooks Ditto, Billy Pembleton and Danny

            Elizondo cooperated with Defendant Karina Castaneda and assisted in falsely

            prosecuting and falsely arresting Plaintiff Jessy Campos.

                   14.    Such arrest was wholly and completely without merit. Defendants Brooks

            Ditto, Billy Pembleton, and Karina Castaneda especially knew their conduct was

            malicious but proceeded regardless.        The arrest and detention of Plaintiff Jessy

            Campos was done for unlawful and ulterior purposes.

                   15.    The material was presented to a grand jury. The grand jury no billed

            Plaintiff, which constitutes a complete vindication.

                                             IV.CAUSES OF ACTION

                   16.    The above and foregoing conduct constitutes loss of consortium as to

            Plaintiff Judith Campos.    Defendants initiated a criminal proceeding in an incorrect

            jurisdiction, on incorrect grounds, and prosecuted Plaintiff's husband criminally for a

            legal act, and was able to obtain Plaintiff’s husband's arrest. Plaintiff was unable to

            interact with her husband during the time he was incarcerated and the stress has


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Accepted by: Ester Espinoza                                                                         Electronically Submitted
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                                                                                                Hidalgo County Clerks Office



            caused loss of affection, solace, comfort, companionship, society, assistance, sexual

            relations, emotional support, love, and felicity.        As a result thereof, Plaintiff Judith

            Campos was harmed.

                   17.    The above and foregoing conduct constitutes malicious prosecution.

            Defendant initiated a criminal proceeding in an incorrect jurisdiction, on incorrect

            grounds, prosecuted Plaintiff Jessy Campos criminally for a legal act, and was able to

            obtain Plaintiff Jessy Campos arrest. As a result thereof, Plaintiff Jessy Campos and

            Plaintiff Judith Campos were harmed.

                   18.    The above and foregoing conduct constitutes abuse of process.

            Defendant had process served on Plaintiff Jessy Campos for an improper and ulterior

            purpose. As a result thereof, Plaintiffs have been harmed.



                                                     V.DAMAGES

                   19.    As a result of Defendants’ conduct, Plaintiff’s have suffered and will suffer

            the following damages:

                          a.     Pain and suffering in the past;

                          b.     Pain and suffering in the future;

                          c.     Mental anguish in the past;

                          d.     Mental anguish in the future;

                   Such damages are in an amount of between $100,000 and $200,000.

                   20.    Plaintiffs are entitled to pre-judgment and post-judgment interest at the

            maximum rate as provided by law.

                   21.    Plaintiffs are entitled to all costs of court.


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Accepted by: Ester Espinoza                                                                     Electronically Submitted
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                                             VI.AFFIRMATIVE PLEAS

                   22.     The amount in controversy is between $100,000 and $200,000.

                   23.     This is a Level 2 case.

                   24.     All conditions precedent have been satisfied and/or excused.

                   25.     Defendants Seashell Germaine, Brooks Ditto, Billy Pembleton and Danny

            Elizondo are jointly and severally liable with Defendant Karina Castaneda because they

            engaged in a civil conspiracy.

                   25.     All Defendants are jointly and severally liable.

                   WHEREFORE, PREMISES CONSIDERED, JUDITH CAMPOS AND JESSY

            CAMPOS, Plaintiff’s in the above styled and numbered cause, respectfully prays that

            Defendants be cited and appear herein, that after trial on the merits, that Defendants be

            found jointly and severally liable for all actual damages, for pre-judgment and post-

            judgment interest at the maximum rate as provided by law, for all costs of court, and for

            all other and further relief, either at law or in equity, to which Plaintiff shows himself

            justly entitled.

                                                       Respectfully Submitted,

                                                       GSK LAW, PLLC

                                                       ____/S/George Durham________
                                                       George Durham
                                                       Attorney for Petitioner
                                                       State Bar No.: 24082940
                                                       517 West Nolana, Ste 6
                                                       McAllen, Texas 78504
                                                       Tel: 956-900-4187
                                                       Fax: 1-956-524-5153

                                                       GSKLawfirm@gmail.com



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