      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00136-CV



                                      Kevin Ficke, Appellant

                                                   v.

                    Tommy Ratliff; Hays County Sheriff’s Department;
             Hays County District Attorney’s Office; and Sherri Tibbe, Appellees


      FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
         NO. 10-1559, HONORABLE BERT RICHARDSON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Kevin Ficke appeals a district-court judgment granting the appellees’ plea to the

jurisdiction based on governmental immunity and dismissing his claims against the Hays County

Sheriff’s Department and the Hays County District Attorney’s Office (collectively, Hays County).1

Ficke contends that Hays County waived immunity by its conduct. The parties are familiar with the

facts, procedural history, and applicable standards of review. Accordingly, we will not recite them

here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See

Tex. R. App. P. 47.4. We will affirm the district court’s judgment.




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          In its judgment the district court recited that Ficke had dismissed his claims against Tommy
Ratliff and Sherri Tibbe during the hearing on the plea to the jurisdiction. Ficke does not complain
about this aspect of the judgment.
               In this appeal, Ficke argues that the trial court should not have granted the plea to the

jurisdiction because Hays County waived its immunity by its conduct consisting of hiring him

knowing of a past expunged and sealed criminal history, representing that his employment would

never be affected by that past history, and subsequently using his past history as a reason for forcing

him to resign from his employment. Ficke further contends that an unidentified Hays County staff

member disclosed his expunged and sealed criminal history to his previous employer. It is

undisputed, however, that Ficke was an at-will employee and was paid for his work in accordance

with his employment contract.

               The “waiver-by-conduct” exception to immunity from suit has not been embraced by

Texas courts. While holding open the possibility that some set of facts might constitute conduct

deemed to waive immunity, the supreme court has yet to identify any set of facts that would amount

to such conduct. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex. 2003)

(holding that “equitable basis for [waiver by conduct] simply does not exist under this set of facts”);

Texas Natural Res. Conservation Comm’n v. IT Davy, 74 S.W.3d 849, 862 (Tex. 2002) (plurality

op.) (Hecht, J., concurring) (“I cannot absolutely foreclose the possibility that the State may

waive immunity in some circumstances other than by statute.”); Federal Sign v. Texas S. Univ.,

951 S.W.2d 401, 408 n.1 (Tex. 1997) (“There may be other circumstances where the State may

waive its immunity by conduct other than simply executing a contract so that it is not always immune

from suit when it contracts.”). The supreme court has yet to find a set of circumstances supporting

the waiver-by-conduct exception to governmental immunity that it has alluded to, and we decline

to do so on the record before us.



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               Ficke asserts that he should be given the opportunity to amend his pleading. But in

recent years Texas courts have consistently declined to recognize a waiver-by-conduct exception to

governmental immunity absent a set of facts so egregious as to shock the conscience of even the

staunchest defender of governmental immunity. See Texas S. Univ. v. State St. Bank & Trust Co.,

212 S.W.3d 893, 908 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (immunity waived when

governmental unit induced private party into contract with promises, including letter from general

counsel, that contract would be valid and enforceable, and then disclaimed any obligation for

$13 million in equipment and services it received by declaring that contract was not valid after all).

Based on the facts pleaded by Ficke in his petition, we are unable to imagine how he could amend

the allegations in a way that would cure the jurisdictional defect. See Texas A & M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex. 2007) (court of appeals erred by providing opportunity

to amend to attempt to cure incurable jurisdictional defect).

               The trial court’s judgment is affirmed.



                                               _____________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: February 27, 2014




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