                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00287-CV

                                 Cecil ADAMS and Maxine Adams,
                                           Appellants

                                                  v.

       HARRIS COUNTY and Christopher A. Prine, Clerk of the First Court of Appeals
                                   Appellees

                     From the 269th Judicial District Court, Harris County, Texas
                                    Trial Court No. 2014-35653
                               Honorable Dan Hinde, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 9, 2015

AFFIRMED IN PART AND DISMISSED FOR LACK OF JURISDICTION IN PART

           Maxine and Cecil Adams filed this interlocutory appeal, complaining of the trial court’s

orders denying their motion to dismiss Harris County’s interpleader action and granting

Christopher A. Prine’s plea to the jurisdiction. We affirm the trial court’s order dismissing the

Adamses’ claims against Christopher A. Prine in his official capacity as Clerk of the First Court

of Appeals. We dismiss the rest of the appeal for lack of jurisdiction.
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                                           BACKGROUND

       This litigation arose as a result of a landlord-tenant dispute between the Adamses and

Rebecca Ross. A lawsuit between them in the 269th Judicial District Court of Harris County,

Texas, resulted in a judgment in favor of the Adamses. The Adamses recovered part of the

judgment through a writ of garnishment, and Ross deposited the balance due on the judgment into

the registry of the court. The Adamses appealed the judgment to the First Court of Appeals, and

in August 2013, the court of appeals dismissed the appeal for want of prosecution. Adams v. Ross,

No. 01-11-00552-CV, 2013 WL 4003757 (Tex. App.—Houston [1st Dist.] Aug. 2, 2013, pet.

denied) (per curiam, mem. op.). The judgment assessed all of the costs of the appeal against

Maxine Adams and ordered the Clerk of the Court to issue a statement of costs with the mandate.

The court of appeals’ mandate issued April 4, 2014. The same day, Christopher A. Prine, Clerk

of the First Court of Appeals, prepared and issued a bill of costs in Appeal No. 01-11-00552-CV.

The bill of costs indicated that a number of items, including fees for preparing parts of the appellate

record, remained unpaid or that the status of payment was unknown.

       In June 2014, Harris County filed a petition in interpleader in the district court, alleging

that the Harris County District Clerk is custodian of the funds Rebecca Ross previously deposited

into the registry of the court. The petition alleged competing claims to the funds had been made

by the Adamses, Ross, the Harris County District Clerk, the court reporter, and Prine, as Clerk of

the First Court of Appeals. Prine disclaimed any interest in the interpleaded funds, and Harris

County nonsuited him from the interpleader action. The Adamses subsequently filed a motion to

dismiss the interpleader action, which the trial court denied by an order signed March 13, 2015.

       The Adamses also filed counter and cross claims against several parties, including an action

under 42 U.S.C. § 1983 against Prine. The Adamses’ live pleading alleges that in the bill of costs,

Prine “systematically over billed for each appellate record filed in the Court of Appeals, and
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charged fees for appellate records that the Harris County [sic] documented as no amount due” and

that Prine and the Harris County District Clerk “falsified court records individually or collectively

to deprive Adams of property without due process.” The Adamses assert that “Christopher Pine

[sic] acting in his individual capacity as the Clerk of the 1st Court of Appeals in performing

ministerial billing responsibilities” proximately caused them to be deprived of property without

due process of law, in violation of their rights under the Fourteenth Amendment. The Adamses

sought damages “from Christopher Prine individually for falsified billing entries resulting in costs

not associated with [the] appeal and punitive damages.”

        Prine filed a plea to the jurisdiction based on the pleadings, asserting he has sovereign and

quasi-judicial immunity from the Adamses’ suit and from liability for the damages claimed. The

trial court granted Prine’s plea and signed an order dismissing the Adamses’ claims against Prine

with prejudice. This appeal followed.

                      DENIAL OF MOTION TO DISMISS INTERPLEADER ACTION

        The Adamses moved to dismiss Harris County’s interpleader suit on the ground that the

County had failed to allege or present evidence on one or more of the elements of an interpleader

action. The trial court denied the motion. This court does not have jurisdiction to consider

immediate appeals of interlocutory orders unless a statute explicitly provides such jurisdiction.

Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).1 The Adamses’ notice of

appeal asserts that an interlocutory appeal of this order is authorized by Texas Rule of Appellate

Procedure 29.6. Rule 29.6 provides that while an appeal from an interlocutory order is pending,

the appellate court may review:

        (1) a further appealable interlocutory order concerning the same subject matter; and


1
  We must inquire into our jurisdiction to consider an appeal even if the parties have not challenged appellate
jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).

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        (2) any interlocutory order that interferes with or impairs the effectiveness of the relief
            sought or that may be granted on appeal.

TEX. R. APP. P. 29.6. An order denying a motion to dismiss an interpleader petition is not

immediately appealable. See Law Office of Henry Gates Steen Jr., P.C. v. Eagle Pass Indep. Sch.

Dist., 293 S.W.3d 792, 794 (Tex. App.—San Antonio 2009, no. pet.) (holding order allowing

interpleader action to go forward is an unappealable interlocutory order). Because the order is not

appealable, Rule 29.6(1) does not apply. In order for Rule 29.6(2) to apply, the Adamses must

establish that the trial court’s order interferes with or impairs the effectiveness of any relief that

may be granted in this appeal. The Adamses’ brief does not contain any argument or authority

directed to this order — either on the merits of the order or in support of our exercising jurisdiction

over the order. We conclude we lack jurisdiction to review the order. Therefore we dismiss for

lack of jurisdiction the Adamses’ appeal of the trial court’s order denying their motion to dismiss

Harris County’s interpleader action.

                                       PLEA TO THE JURISDICTION

        Prine’s plea to the jurisdiction asserted grounds for dismissing both official capacity and

individual capacity claims against him. The trial court’s order sustained the plea in its entirety and

dismissed all of the Adamses’ claims against Prine with prejudice. 2 This court generally has

jurisdiction to hear appeals only from final judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d

266, 272 (Tex. 1992). The trial court’s order dismissing the Adamses’ claims with prejudice is

not final because other claims and parties remain pending in the trial court. We have jurisdiction

to review the trial court’s interlocutory orders only if expressly authorized by statute. Koseoglu,

233 S.W.3d at 840.


2
  The parties dispute whether the Adamses’ pleading asserted both individual and official capacity claims against
Prine. For purposes of this appeal, we construe the Adamses’ pleading broadly and assume that official capacity
claims as well as individual capacity claims were pleaded.

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           The Adamses contend that section 51.014(a)(8) of the Texas Civil Practice and Remedies

Code authorizes us to exercise jurisdiction over the trial court’s interlocutory dismissal order. That

section provides:

           A person may appeal from an interlocutory order of a district court . . . that . . .
           grants or denies a plea to the jurisdiction by a governmental unit as that term is
           defined in Section 101.001.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2015). 3 “We strictly construe Section

51.014(a) as ‘a narrow exception to the general rule that only final judgments are appealable.’”

Koseoglu, 233 S.W.3d at 841 (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355

(Tex. 2001)).

Official Capacity Claims

           Under Texas law, a suit against a government employee in his official capacity is usually

a suit against his government employer. Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex.

2011). A state official sued in his official capacity may invoke the sovereign immunity from suit

held by the governmental unit itself because the suit is not one against the official personally; the

real party in interest is the governmental unit. Koseoglu, 233 S.W.3d at 844 (citing Kentucky v.

Graham, 473 U.S. 159, 166 (1985)). A state official sued in his official capacity therefore may

challenge the trial court’s jurisdiction on the grounds of sovereign immunity by filing a plea to the

jurisdiction, and the trial court’s ruling on the plea is within the scope of section 51.014(a)(8). Id.

at 843.




3
    The definition of “governmental unit” in section 101.001 of the Texas Civil Practice and Remedies Code includes:

           this state and all the several agencies of government that collectively constitute the government of
           this state, including other agencies bearing different designations, and all departments, bureaus,
           boards, commissions, offices, agencies, councils, and courts;

TEX. CIV. PRAC. & REM. CODE ANN. 101.001(3)(A) (West Supp. 2015) (emphasis added).

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       Prine is an officer or employee of the First Court of Appeals, which is an agency of the

State of Texas and a “governmental unit” within the meaning of section 101.001(3)(A) of the

Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(A).

A suit against Prine in his official capacity as the Clerk of the First Court of Appeals is effectively

against the governmental unit, and Prine may assert the governmental unit’s immunities from suit

in a plea to the jurisdiction. See Koseoglu, 233 S.W.3d at 843. The court’s order granting the plea

filed by Prine in his official capacity is appealable under section 51.014(a)(8). See id.

       Prine’s plea to the jurisdiction argued that a section 1983 suit against Prine in his official

capacity is barred by sovereign immunity and by the Eleventh Amendment. We agree. The

Eleventh Amendment to the United States Constitution bars a suit against the State in state court

unless the State waives its immunity or Congress abrogates it. Alden v. Maine, 527 U.S. 706, 754

(1999); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010). In enacting 42

U.S.C. § 1983, Congress did not abrogate the states’ Eleventh Amendment immunity. Quern v.

Jordan, 440 U.S. 332, 337–45 (1979); see also Hafer v. Melo, 502 U.S. 21, 25, 27 (1991) (holding

suits against state officials in their official capacity are suits against the State, and section 1983

does not authorize suits against them). We therefore hold the trial court did not err in sustaining

the plea to the jurisdiction filed by Prine in his official capacity and affirm the order dismissing

the Adamses’ claims against Prine in his official capacity.

Individual Capacity Claims

       The Adamses also challenge the trial court’s order dismissing their section 1983 claims

against Prine in his individual capacity for actions he took under the authority of his office. Prine’s

plea to the jurisdiction asserted the defense of quasi-judicial immunity to the individual-capacity

section 1983 claims.



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       A section 1983 claim against a governmental official or employee in his individual capacity

for actions taken under the authority of his office seeks to impose personal monetary liability on

the officer or employee. See Hafer, 502 U.S. at 25. It is not a claim against a governmental unit,

and a person sued only in his individual capacity may not assert the governmental unit’s sovereign

immunity. City of Leon Valley v. Wm. Rancher Estates Joint Venture, No. 04-14-00542-CV, 2015

WL 2405475, at *2 (Tex. App. May 20, 2015, no pet.); see Harrison v. Tex. Dep’t of Criminal

Justice–Institutional Div., 915 S.W.2d 882, 887-89 (Tex. App.—Houston [1st Dist.] 1995, no pet.)

(sovereign immunity does not bar a section 1983 suit against individual state officials in their

individual capacities, even if they were acting in their official capacities when they took the actions

complained of). A governmental official or employee sued in his individual capacity may assert

quasi-judicial immunity as an affirmative defense; however, it is a personal defense, not one

asserted by a governmental unit or by a state employee sued in his official capacity. See Turner v.

Houma Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000).

       The plea to the jurisdiction filed by Prine in his individual capacity was based on his claim

of quasi-judicial immunity, a personal defense that is not based on the governmental unit’s

immunity. Therefore, the trial court’s ruling on the plea was not one that “grant[ed] or denie[d] a

plea to the jurisdiction by a governmental unit,” and the Adamses’ interlocutory appeal is not

authorized by section 51.014(a)(8). See Sanders v. City of Grapevine, 218 S.W.3d 772, 776 (Tex.

App.—Fort Worth 2007, pet. denied) (holding trial court’s order granting plea to jurisdiction and

dismissing with prejudice claims against city officials in their individual capacities was not an

appealable interlocutory order under section 51.014(a)(8)). We therefore dismiss this part of the

appeal for lack of jurisdiction.




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                                                                                    04-15-00287-CV


                                              CONCLUSION

       The trial court’s order dismissing with prejudice Maxine and Cecil Adamses’ claims

against Christopher A. Prine in his official capacity as the Clerk of the First Court of Appeals is

affirmed. The Adamses’ appeal of the trial court’s orders (1) denying their motion to dismiss

Harris County’s interpleader petition and (2) granting the plea to the jurisdiction filed by

Christopher Prine in his individual capacity and dismissing the individual capacity claims against

him are dismissed for lack of jurisdiction.


                                                   Luz Elena D. Chapa, Justice




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