                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-14-00675-CV

                                         John M. DONOHUE,
                                              Appellant

                                               v.
Bandera Co. Sheriff’s Dept.; Daniel R. Butts, Sheriff; J.J. Martinez, Deputy; John Doe#1, Does
BANDERA COUNTY SHERIFF’S DEPARTMENT; Daniel R. Butts, Sheriff; J.J. Martinez,
Deputy; John Doe #1; John Doe #2; John Doe #3, Individually, Jointly, Severally, and In Their
                                      Official Capacity,
                                          Appellees

                    From the 198th Judicial District Court, Bandera County, Texas
                                  Trial Court No. CV-14-0000239
                            Honorable M. Rex Emerson, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 12, 2015

AFFIRMED

           John M. Donohue challenges the trial court’s judgment granting the plea to the jurisdiction

filed by the Bandera County Sheriff’s Department; Daniel R. Butts, Sheriff; J.J. Martinez, Deputy;

John Doe #1; John Doe #2; John Doe #3, Individually, Jointly, Severally, and In Their Official

Capacity (collectively, “Butts”). We affirm the judgment of the trial court.
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                                           BACKGROUND

       On July 24, 2014, Donohue filed an Original Notice of Complaints and Claims for Relief

in which he named the Bandera County Sheriff’s Department, Butts, Deputy J.J. Martinez, and

three John Doe Deputies, “individually, jointly[,] severally and in their official capacity,” as

defendants. Donohue alleged that the defendants damaged or destroyed and illegally seized his

personal vehicle. Donohue sought compensatory and punitive damages, as well as restitution in

an amount equal to the value of his truck.

       In response, Butts filed a Plea to the Jurisdiction, Plea in Abatement, and Original Answer

asserting governmental immunity. After a hearing in which Donohue appeared telephonically, the

trial court granted Butts’ plea to the jurisdiction and dismissed Donohue’s claims with prejudice.

                                             DISCUSSION

       In his pro se First Amended Brief filed on January 26, 2015, Donohue raises four issues.

He contends the trial court erred in granting the plea to the jurisdiction because: (1) the trial court

had jurisdiction under the Penal Code; (2) he was not allowed time for discovery; (3) the deputies

are liable in their individual capacities; and (4) there is no proof of immunity.

                                       STANDARD OF REVIEW

       A trial court must have subject-matter jurisdiction to decide a case. See Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A plaintiff bears the initial burden of

alleging facts that affirmatively demonstrate the trial court’s subject matter jurisdiction over the

suit. Id. at 446. A defendant may challenge the trial court’s subject matter jurisdiction through a

plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

       Whether a court has subject matter jurisdiction and whether a plaintiff has alleged facts

that affirmatively demonstrate a trial court’s subject matter jurisdiction are questions of law. Tex.



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Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Accordingly, we review

de novo a challenge to the trial court’s subject matter jurisdiction. Id.

         GOVERNMENTAL IMMUNITY AND WAIVER THROUGH THE TORT CLAIMS ACT

        Sovereign immunity shields a state from suit unless it expressly consents to being sued.

See Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Governmental immunity affords

similar protection to subdivisions of the state, such as counties. See id. The purpose of sovereign

immunity, and its counterpart, governmental immunity, is to protect subdivisions of the state from

lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 655 (Tex. 2008). Furthermore, “[a] suit against government employees in their official

capacities is, in all respects, a suit against the State; thus employees sued in their official capacities

are shielded by sovereign immunity.” Univ. of Tex. Med. Branch at Galveston v. Hohman, 6

S.W.3d 767, 777 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.). Specifically, “official-

capacity suits ‘generally represent only another way of pleading an action against an entity of

which an officer is an agent.’” Hafer v. Melo, 502 U.S. 21, 25 (1991); see also Bennett v. Pippin,

74 F.3d 578, 584 (5th Cir. 1996) (noting that a suit against a county official in his official capacity

is a suit against the county “directly in everything but name”).

        Under Texas law, a governmental unit is immune from tort liability unless the Legislature

has waived immunity. See Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968

S.W.2d 339, 341 (Tex. 1998). However, the Texas Tort Claims Act provides a limited waiver of

immunity for certain suits against governmental entities. Garcia, 253 S.W.3d at 655. “In order

for immunity to be waived under the Tort Claims Act, the claim must arise under one of the three

specific areas of liability for which immunity is waived, and the claim must not fall under one of

the exceptions from waiver.” Morgan v. City of Alvin, 175 S.W.3d 408, 417 (Tex. App.—Houston

[1st Dist.] 2004, no pet.). The three areas of liability in which immunity is waived under the Tort
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Claims Act are: “(1) injury caused by an employee’s use of a motor-driven vehicle within the scope

of his employment; (2) injury caused by a condition or use of tangible personal or real property;

and (3) premise defects.” Id. at 418 (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021–.022

(West 2011)).

                                            ANALYSIS

       Initially, Donohue claims that he did not bring suit under the Tort Claims Act, but rather,

asserted claims under the Texas Penal Code, and therefore has not alleged the commission of a

negligent or intentional tort by a County employee acting in his official capacity which would

preclude subject-matter jurisdiction. We disagree. To begin with, Donohue has no standing to

bring suit under the Penal Code. See TEX. CODE CRIM. PROC. ANN. art. 3.02 (West 2015) (“A

criminal action is prosecuted in the name of the State of Texas against the accused, and is

conducted by some person acting under the authority of the State, in accordance with its laws.”).

Further, despite the alleged penal nature of his claims, Donohue filed a civil lawsuit seeking

compensatory and punitive damages from Bandera County.

       Bandera County is a governmental unit entitled to governmental immunity, and thus, to

immunity from suit. Catalina Dev., Inc. v. Cnty. of El Paso, 121 S.W.3d 704, 705 (Tex. 2003)

(noting county is governmental unit protected by sovereign immunity); Franks v. Zwicke, No. 04-

12-00529-CV, 2013 WL 1642722, at *3 (Tex. App.—San Antonio Apr. 17, 2013, no pet.) (mem.

op.). When filing a suit for damages against a governmental entity, the plaintiff must affirmatively

plead and prove the court’s jurisdiction to hear the lawsuit under the Tort Claims Act. See Tex.

Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Donohue’s pleadings did

not allege a waiver of immunity, nor does it appear from his pleadings that such a waiver exists.

To wit, Donohue’s claims do not arise from the use of a motor-driven vehicle; do not arise from a

condition or use of tangible personal property; nor do they arise from a premise defect. See TEX.
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CIV. PRAC. & REM. CODE ANN. §§ 101.021–.022. Rather, Donohue alleged a destruction of

personal property claim against the Bandera County Sheriff and deputies in their personal and

official capacities. Such intentional torts by government employees are not covered under the Tort

Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West 2011) (noting Tort

Claims Act does not apply to claim arising out of assault, battery, false imprisonment, or any other

intentional tort); see also Hohman, 6 S.W.3d at 777 (stating “[t]he Texas Tort Claims Act provides

that sovereign immunity exists for intentional torts”). Because the facts pled by Donohue amount

to an intentional tort, we hold there is no waiver of immunity under the Tort Claims Act. Thus,

we hold Donohue’s claims were properly dismissed, and the trial court did not err in granting the

plea to the jurisdiction. Accordingly, we overrule Donohue’s first and fourth issues.

        Next, Donohue contends that he has not brought suit against a governmental entity, but,

rather, against the individual defendants in their personal capacities. Yet Donohue cannot deny

that suit was filed against all defendants in both their personal and official capacities. Additionally,

Donohue sued the Bandera County Sheriff’s Department. By bringing suit against the Bandera

County Sheriff’s Department, Donohue sued all named individuals in their official capacities. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (e) (West 2011); Tex. Bay Cherry Hill, L.P. v.

City of Fort Worth, 257 S.W.3d 379, 401 (Tex. App.—Fort Worth 2008, no pet.) (“Tort Claims

Act suit against a governmental unit bars a same-subject-matter suit against an employee of the

governmental unit in both the employee’s official and individual capacities.”). A suit brought

against Butts and the deputies in their official capacities is a suit against the governmental entity.

See Smith v. Davis, 999 S.W.2d 409, 416 (Tex. App.—Dallas 1999, no pet.) (“official capacity

suits represent simply another way of pleading an action against the government so long as the

government has notice and an opportunity to respond”). Thus, Donohue was still required to plead

facts alleging a waiver of immunity. Because, as we discussed earlier, Donohue did not meet this
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                                                                                       04-14-00675-CV


burden, the trial court did not err in dismissing his claims and granting the plea to the jurisdiction.

Accordingly, Donohue’s third issue is overruled.

       Finally, Donohue asserts that the trial court erred in not allowing time for discovery.

“When the consideration of a trial court’s subject matter jurisdiction requires the examination of

evidence [beyond the allegations in the pleadings], the trial court exercises its discretion in

deciding whether the jurisdictional determination should be made at a preliminary hearing or await

a fuller development of the case, mindful that this determination must be made as soon as

practicable.” Miranda, 133 S.W.3d at 227. Thus, while limited discovery may be appropriate

when an evidence-based jurisdiction challenge is asserted, when jurisdiction can be determined

from the face of the pleadings, the trial court does not abuse its discretion in refusing to allow

discovery. Id.; see also Bland Indep. Sch. Dist., 34 S.W.3d at 554; Delk v. Lehmberg, No. 03-12-

00678-CV, 2014 WL 1910314, at *3 (Tex. App.—Austin May 9, 2014, no pet.) (mem. op.)

(holding that trial court did not err in granting plea to the jurisdiction before allowing discovery

because plaintiff’s pleadings affirmatively demonstrated that trial court lacked subject-matter

jurisdiction over plaintiff’s suit). Here, it is apparent from the face of the pleadings that Butts was

immune from the suit. Because Donohue has not shown how discovery or evidence could establish

that the trial court had jurisdiction, when the pleadings establish otherwise, we cannot conclude

that the trial court abused its discretion in refusing to allow discovery. See Sykes, 136 S.W.3d at

639 (trial court may dismiss suit filed against governmental entity when it is apparent from

pleadings that governmental entity is immune); LA Ash, Inc. v. Tex. A & M Univ., No. 10-07-

00388-CV, 2008 WL 4742135, at *4 (Tex. App.—Waco Oct. 29, 2008, no pet.) (mem. op.) (same).

Accordingly, we overrule Donohue’s second issue. Having overruled all of Donohue’s issues on

appeal, we affirm the judgment of the trial court.

                                                     Rebeca C. Martinez, Justice
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