                    NUMBER 13-17-00455-CV

                    COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI – EDINBURG

JOHNNY LEE DAVIS,                                      Appellant,

                              v.

THE CITY OF ARANSAS PASS,
ARANSAS POLICE DEPT., ARANSAS
PASS CITY GOVERNMENT CHIEF OF
POLICE ERIC BLANCHARD, CAPTAIN
KYLE RHODES, DETECTIVE LEO MARTINEZ                   Appellees.


            On appeal from the 343rd District Court
                of San Patricio County, Texas.



               MEMORANDUM OPINION
       Before Justices Contreras, Longoria, and Hinojosa
          Memorandum Opinion by Justice Longoria
       Appellant Johnny Lee Davis appeals from the granting of appellee’s motions for

summary judgment. By five issues, Davis argues the trial court erred when it granted the

motions for summary judgment on each of his claims. We affirm.

                                   I.      BACKGROUND

       On or about September 2014, Davis brought suit against appellees, the City of

Aransas Pass, Aransas Pass Police Department, Aransas Pass City Government, Chief

of Police Eric Blanchard, Captain Kyle Rhodes, and Detective Leo Martinez for claims of:

       (1) slander per se—injury to professional reputation; (2) slander per se—
       injury to personal reputation; (3) slander per se—accusations of criminal
       conduct; (4) slander by implication; (5) slander—reckless disregard/malice;
       (6) libel per se—injury to professional reputation; (7) libel per se—injury to
       personal reputation; (8) libel by implication; (9) libel per se—accusations of
       criminal conduct; (10) libel—reckless disregard/malice; (11) intentional
       infliction of emotional distress; (12) negligence; and (13) deprivation of U.S.
       Constitutional rights, privileges and protections.

       Davis was confined in a federal penitentiary at the time of the case filing and was

allowed to proceed in forma pauperis. The case was dormant until the citations were

issued on May 19, 2016. Defendants then removed the case to federal court in June

2016. Upon removal to federal court, Davis dropped his federal claims and the case was

remanded back to state court in September 2016, on his live claims for libel, slander,

intentional infliction of emotional distress, and negligence.

       Davis’s complaints arise out of alleged defamatory statements made during an

investigation into the murder of a sixteen-year-old girl, Jenna Hernandez. Davis alleges

that there was publication of numerous false oral statements, made by police officers,

alleging his involvement in the murder of Hernandez. Specifically, Davis complained that

statements made by the police during their investigation as well as statements made in

the course of judicial proceedings and used in court documents in relation to the murder


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investigation, which were subsequently published by news outlets, constituted libel and

slander, were negligent, and were made with the intent to cause him emotional distress.

        In March 2016, Davis was indicted for criminal solicitation. See TEX. PENAL CODE

ANN. § 15.03 (West, Westlaw through 2017 1st C.S.). In February 2017, Davis was

convicted of soliciting the murder of Hernandez. 1 Following his conviction, in March 2017,

appellees in the underlying civil matter moved for traditional and no-evidence summary

judgment. In their motions, appellees asserted governmental immunity and derived

immunity; they asserted that Davis’s claims are barred because they challenge the

legality of his confinement and because the statements about which he complains were

true; and they argued that the statements were privileged. Alternatively, appellees also

asserted that Davis’s claims are barred by the statute of limitations and the doctrine of

laches because Davis failed to exercise diligence in serving appellees with citation. The

trial court granted the motions for summary judgment and this appeal followed.

                            II.     MOTIONS FOR SUMMARY JUDGMENT

        In five issues, Davis argues that the trial court erred in granting appellees’ motions

for summary judgment. Specifically, Davis argues: (1) the trial court abused its discretion

in dismissing the case when his claims were cognizable; (2) the trial court abused its

discretion by dismissing the case for lack of jurisdiction and immunities; (3) the trial court

erred in granting summary judgment based on its own resolution of disputed facts; (4) the

trial court erred when it denied that his factual allegations raised a material issue; and (5)




       1 Appellant’s conviction has been affirmed on appeal by this Court. See Davis v. State, No. 13-17-

00103-CR, 2018 WL 3583788, at *1 (Tex. App.—Corpus Christi July 26, 2018, no pet. h.) (mem. op. not
designated for publication).


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the trial court abused its discretion by stating that slander and libel are not cognizable

claims.

A.     Standard of Review and Applicable Law

       A motion for summary judgment may be brought on no-evidence or traditional

grounds. See TEX. R. CIV. P. 166a(c), (i). A motion for no-evidence summary judgment

is equivalent to a motion for pretrial directed verdict, and we apply the same legal

sufficiency standard on review. Nalle Plastics Family Ltd. P’ship v. Porter, Rogers,

Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet.

denied). Such a motion should be granted if there is no evidence of at least one essential

element of the claimant’s cause of action. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.

2008). All that is required of the non-movant is to produce a scintilla of probative evidence

to raise a genuine issue of material fact on the challenged element. Forbes Inc. v.

Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of

evidence exists when the evidence is so weak as to do no more than create a mere

surmise or suspicion of a fact. Id. More than a scintilla of evidence exists if it would allow

reasonable and fair-minded people to differ in their conclusions. Id.

       When reviewing a traditional summary judgment, we must determine whether the

movant met its burden to establish that no genuine issue of material fact exists and that

the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). We review

the trial court’s summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). In order to prevail on a traditional summary judgment claim,

the movant must either (1) disprove at least one element of the plaintiff’s theory of

recovery or (2) plead and conclusively establish each essential element of an affirmative



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defense. Biaggi v. Patrizio Rest., Inc., 149 S.W.3d 300, 303 (Tex. App.—Dallas 2004,

pet. denied) (citing Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.

1979)).

      When reviewing a summary judgment, we take as true all evidence favorable to

the nonmovant, and we indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Provident Life, 128 S.W.3d at 215 (citing Sw. Elec. Power Co. v.

Grant, 73 S.W.3d 211, 215 (Tex. 2002); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910,

911 (Tex. 1997)).   Because the trial court did not specify the grounds upon which

summary judgment was granted, we will affirm the judgment “if any of the theories

presented to the trial court and preserved for appellate review are meritorious.” Joe v.

Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex. 2004).

B.    Governmental Immunity Analysis

      Appellees’ argue that summary judgment was appropriately granted because they

are immune from tort liability and such immunity was not waived under the Texas Tort

Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001 (West, Westlaw

through 2017 1st C.S.). When a plaintiff sues a governmental entity or official, it must

affirmatively demonstrate the trial court’s jurisdiction by alleging a valid waiver of

immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); City

of Alton v. Sharyland Water Supply Corp., 145 S.W.3d 673, 678 (Tex. App.—Corpus

Christi 2004, no pet.). Governmental immunity shields a city from liability except to the

extent immunity is waived by the TTCA. See City of Alton, 145 S.W.3d at 679; City of

Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995, no




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pet.). The TTCA does not waive immunity for intentional torts. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.057(2) (West, Westlaw through 2017 1st C.S.).

       In response, appellant argues in his second issue that his underlying claims are

against the actors in their individual capacities, and thus he argues immunity is not

warranted. If the plaintiff sues a person in his or her official capacity, the plaintiff is not

attempting to impose liability on the individual specifically named but, rather, on the

governmental unit the official represents. Vela v. Rocha, 52 S.W.3d 398, 403 (Tex.

App.—Corpus Christi 2001, no pet.). “Persons sued in their official capacity may raise

any defense available to the governmental unit, including sovereign [or governmental]

immunity.” Nueces Cnty. v. Ferguson, 97 S.W.3d 205, 214 (Tex. App.—Corpus Christi

2002, no pet.) (citation and footnote omitted). A claim against a person in his or her

individual capacity, by contrast, “seeks to impose liability on the person being sued for

personal actions taken under the color of state law”; damages in such a suit are collectible

from the individual and not the governmental unit. Id. Persons sued in their individual

capacities may not rely on sovereign immunity, although they may assert the affirmative

defense of official immunity. Vela, 52 S.W.3d at 403–04. Persons sued in both their

official and individual capacities may claim both sovereign and official immunity.

Ferguson, 97 S.W.3d at 215 (citing Bagg v. Univ. of Tex. Med. Branch at Galveston, 726

S.W.2d 582, 586 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.)). However, they

are entitled to sovereign immunity protection “only to the extent that they were acting in

their official capacity.” Id. In our review of the pleadings, we must ascertain the true

nature of appellant’s claims and not exalt form over substance. See Pickell v. Brooks,




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846 S.W.2d 421, 424 n. 5 (Tex. App.—Austin 1992, writ denied) (citing State v. Lain, 162

Tex. 549, 349 S.W.2d 579, 582 (Tex. 1961)).

       Davis’s live pleading contains claims that rely upon statements that were made or

issued by appellees “acting in the color of [their] office.” Although he names each

appellee individually, his argument and underlying suit stem from allegedly defamatory

statements made by appellees in their official capacities. See Gomez v. Hous. Auth. of El

Paso, 148 S.W.3d 471, 482 (Tex. App.—El Paso 2004, pet. denied) (finding no individual

claim against a defendant where the complained-of actions involved her duties as a

government employee); Terrell v. Sisk, 111 S.W.3d 274, 281-82 (Tex. App.—Texarkana

2003, no pet.) (holding that a judge was sued in his official capacity because the petition

did not involve “a situation where there [was] a mixture of allegations, some of which

[were] directed at actions taken outside a public capacity. In this case, all allegations

were of claimed wrongdoing or negligence by [the judge] in actions he was able to take

only because of his position as a public servant”).

       Also, in his response to appellees’ motions for summary judgment pertaining to

immunity, appellant relies upon Monell v. Department of Social Services of City of New

York, 436 U.S. 658 (1978), to argue that a governmental entity is responsible for injury

inflicted through libel and is not immune to such claims. However, appellant’s reliance on

Monell is misplaced. Monell analyzes the immunity of a municipality or governmental

agency in relation to a violation of the Civil Rights Act. See id. at 691; see also 42 U.S.C.

§ 1983. In order to remain in state court, appellant dropped his claim under 42 U.S.C. §

1983, and cannot now rely on such a claim to establish his claim that the appellees are

not entitled to immunity.



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       Here, appellant’s petition alleges claims for intentional torts—defamation,

defamation per se, libel, libel per se, and intentional infliction of emotional distress.

Appellant also makes a claim for negligence which stems solely from his intentional tort

claims. 2 As noted, the TTCA does not waive governmental immunity for intentional tort

claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2); see also Ferguson, 97

S.W.3d at 214 (providing that a government employee sued in his official capacity is

entitled to the same immunity as the governmental entity he represents). We therefore

conclude that the trial court did not err in granting appellees’ motion for summary

judgment on the basis of governmental immunity. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.057(2); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Appellant’s

second issue is overruled. 3

                                        III.    CONCLUSION

       We affirm the judgment of the trial court.

                                                                       NORA L. LONGORIA
                                                                       Justice
Delivered and filed the
29th day of August, 2018.




       2 Davis’s claims for negligence arise out of his underlying argument that the alleged defamatory

statements were made negligently.
       3  Having determined that appellant sued appellees in their official capacity and governmental
immunity therefore barred suit against appellees, we need not reach appellant’s remaining issues. See
TEX. R. APP. P. 47.1.

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