                            NUMBER 13-16-00285-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

NORMA PERALES,                                                              Appellant,

                                           v.

ROEL LARA AND ALFONSO
SANTOS OBREGON JR.,                                                        Appellees.


               On appeal from the County Court at Law No. 4
                        of Nueces County, Texas.


                         MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Contreras and Hinojosa
             Memorandum Opinion by Justice Contreras
      Appellant Norma Perales sued appellees Roel Lara and Alfonso Santos Obregon

Jr., alleging that they fraudulently prevented her from being considered for an

employment position with the Robstown Independent School District (the District). In this

appeal, Perales argues by two issues that the trial court erred by granting a plea to the
jurisdiction based in part on section 101.106(f) of the Texas Tort Claims Act (TTCA). We

affirm.

                                               I. BACKGROUND

          At the time of the events made the basis of this lawsuit, Perales was a teacher

employed by the District, Obregon was the District’s superintendent, and Lara was the

District’s assistant superintendent. Following the end of the 2010–2011 school year, the

District offered its employees a Voluntary Exit Incentive Agreement (Exit Agreement)

under which employees could choose to waive their continuing contract, resign their

position, and accept an incentive stipend of $5,000. Perales accepted the offer and

signed the Exit Agreement on March 21, 2011.1

          According to Perales’s live petition, her principal asked her in late May 2011 to

reconsider her resignation and to continue teaching in her current position. Perales

alleged that, in early June, she met with Lara and asked him about the possibility of

rescinding her resignation. Perales alleged in her petition that Lara advised her she could

either: (1) rescind her resignation and “forego” the incentive payment, despite the fact

that the rescission period under the agreement had expired; or (2) keep the incentive

payment and re-apply for employment with the District. Perales asserts that, because



          1   The Exit Agreement provided in part:
          Participant additionally waives and releases any right Participant may have to recover in
          any lawsuit or proceeding of any type on behalf of Participant. This paragraph is not
          intended to limit Participant from instituting legal action for the sole purpose of enforcing
          this Agreement. Participant also agrees to waive any right to reinstatement or any future
          employment or relationship with the District. However, the District retains the right, in its
          sole discretion, to consider Participant for future employment in any capacity.
          ....
          Participant acknowledges that Participant will be given seven (7) calendar days after
          signing this Agreement to rescind, revoke or cancel this Agreement, and that a Rescission
          Notice for this purpose is located at the end of this Agreement.

                                                       2
both Lara and Obregon “acknowledged” to her that other District employees had been

able to resign, keep their incentive payments, then successfully re-apply for employment

with the District, she decided to do so as well.

       Perales submitted her application for re-employment and claims to have received

an email from Lara’s secretary stating that she had completed the application process.

However, according to Perales, Lara told her principal that she had not completed the

application and that her application still needed to be “processed.”                   Later, Perales

received an email from Lara stating that she could “reapply and go through the interview

process when the administration is ready to interview and start the interview process.”

After several weeks passed and she had still not been called for an interview, Perales

contacted her school’s assistant principal, who advised Perales on July 18, 2011 that “she

had reviewed the list of applicants and that [Perales’s] name did not appear on the list.”

Meanwhile, according to Perales’s petition, Lara told the assistant principal that Perales

“had already retired,” and he told another teacher that Perales “had not submitted an

application for employment.”

       Perales then met with Obregon on August 24, 2011. Perales claims in her petition

that Obregon told her that Lara had made “several lapses in judgment” and “if she chose

to retire that he would be able to provide her with a consultant job with [the District].”2 The

following day, Perales met again with Obregon and “accepted his offer” to retire and be

re-hired for one of the new “coaching” positions. According to Perales, Obregon told her


       2   Perales alleged specifically:
       Obregon contended that there would be several “consultant” or curriculum “coaching”
       positions that would be created within the [District] and funded by President Obama’s
       “stimulus plan”. Defendant Obregon further contended that these new positions would be
       offered to retiring teachers, including his own wife, and would enable retired teachers to
       work part-time and receive retirement benefits as well.

                                                   3
on October 10, 2011 that “her application would be processed” and that “two principals

were interested in offering her a coaching position” at their schools. However, she was

never contacted about that position.

       In her lawsuit, Perales argued that Lara and Obregon “fraudulently induced [her]

not to rescind her resignation based on their representations that they would allow her to

submit an employment application as a new employee for a 2011–12 teaching contract

which would be considered by [the District].” She argued that the law required Lara and

Obregon “to process [her] application and to list her name as an applicant” and that “it

was not within their scope of authority not to process her application.” She sought

damages for fraud and intentional infliction of emotional distress.

       Lara and Obregon answered the suit and filed a plea to the jurisdiction arguing that

they were immune to suit and that the suit should be dismissed under subsection

101.106(f) of the TTCA because the alleged actions were done within the course and

scope of their employment. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West,

Westlaw through 2017 1st C.S.). The pleas were accompanied by affidavits from both

defendants in which they stated: “All of my interactions, communications, and activities

undertaken in connection with Norma Perales and her employment status, as described

in the Plaintiff’s Original Petition, were done so in my capacity as a District employee,

within the course and scope of my employment with the District, and generally related to

my service to the District.”   Lara stated in his affidavit that his job duties included

“providing information to District employees (current, past, and prospective) about the

[Exit Agreement] program, and applications for employment.” Obregon stated in his

affidavit that his job duties included “interacting and communicating with District



                                             4
employees (current, past, and prospective), like Norma Perales, regarding any and all

matters related to employment.”

        Several months later, Lara and Obregon filed a “Motion to Dismiss Subject to Plea

to the Jurisdiction” in which they repeated their argument for dismissal under TTCA

subsection 101.106(f).3 After a hearing on February 24, 2016, the trial court orally granted

the plea to the jurisdiction and rendered an order granting the motion to dismiss Perales’s

suit under subsection 101.106(f). Subsequently, Lara and Obregon moved for entry of a

“corrected order” specifying that the trial court granted the plea to the jurisdiction rather

than the motion to dismiss.

        Perales then filed a timely motion for reconsideration or new trial arguing that Lara

and Obregon are not immune to suit because they “conspired . . . to prevent [her]

application from being reviewed or considered by any of the District’s principals,” and

because they did not cite any authority showing “that they were authorized [or] that it was

within their scope of their employment to determine whether an employment application

could even be considered by [the District].” Perales noted in her motion that, according

to District policy, although “[t]he Superintendent has sole authority to make

recommendations to the Board regarding the selection of contractual personnel,” the

District’s board of trustees “retains final authority for employment of contractual

personnel.” Perales further argued that, although District policy provides that “[t]he

Superintendent has sole authority to make recommendations to the Board regarding the

selection of all personnel, except that the Board may delegate final authority for those




        3 The record does not contain any written response from Perales to either the plea to the jurisdiction

or the motion to dismiss.

                                                      5
decisions to the Superintendent,” Lara and Obregon “did not present nor cite any authority

that established that the Board had indeed delegated the final authority to select

personnel—because there is none.” Lara and Obregon filed a response reiterating their

position that their “alleged acts or inaction[s] . . . were all generally related to [their]

service to, and fell within the scope of their employment with the District.”4

        The trial court orally denied the motion for reconsideration. It later rendered a

second order, pursuant to Lara and Obregon’s request, stating that the plea to the

jurisdiction had been granted. This appeal followed.

                                            II. DISCUSSION

        By her first issue, Perales argues that the trial court erred in granting the plea to

the jurisdiction. She argues by her second issue that, if we find no error, we should

remand for the opportunity to replead.

A.      Standard of Review

        Whether a trial court has subject matter jurisdiction is a question of law that we

review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

The plaintiff has the initial burden to plead facts affirmatively showing that the trial court

has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.—Fort Worth 2003,

pet. denied). We construe the pleadings liberally in favor of the pleader, look to the

pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda,




       4 Lara and Obregon noted in their response that “the District ultimately did re-employ [Perales] and

she remains employed there currently.” They have not moved to dismiss the appeal as moot.

                                                    6
133 S.W.3d at 226, 228.

       When the existence of jurisdictional facts is challenged, we consider relevant

evidence submitted by the parties to resolve the jurisdictional issues raised, even when

the evidence implicates the merits of the cause of action. Id. at 227; see City of Waco v.

Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). If the evidence is undisputed or fails to raise

a fact question, the trial court rules on the jurisdictional issue as a matter of law. Miranda,

133 S.W.3d at 228. But if the evidence creates a fact question regarding the jurisdictional

issue, then the fact question must be resolved by the fact finder. Id. at 227–28. In

considering the evidence, we take as true all evidence favorable to the non-movant and

indulge every reasonable inference and resolve any doubts in the non-movant’s favor.

Id.

B.     Analysis

       Governmental immunity, which applies to school districts, defeats a trial court’s

subject matter jurisdiction. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 655 n.2 (Tex. 2008); Miranda, 133 S.W.3d at 225.               A governmental entity’s

employee, acting within the course and scope of his employment, has the same immunity

as the governmental entity. City of N. Richland Hills v. Friend, 370 S.W.3d 369, 373 (Tex.

2012) (noting that “the doctrine of governmental immunity protects the public fisc by

prohibiting suits against governmental units (or their employees acting within the scope

of their employment) except in narrow circumstances prescribed by statute.”).

       A plaintiff may sue a government employee in his or her official capacity, individual

capacity, or both. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.7 (Tex. 2009). A

suit against a government employee in his or her official capacity is considered a suit



                                              7
against the governmental employer and is barred unless immunity is explicitly waived by

the Legislature. Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011). Conversely, a

suit against a government employee in his or her individual capacity seeks to impose

personal liability on the individual. Aguilar v. Frias, 366 S.W.3d 271, 273 (Tex. App.—El

Paso 2012, pet. denied); Nueces Cty. v. Ferguson, 97 S.W.3d 205, 213–14 (Tex. App.—

Corpus Christi 2002, no pet.).

        Perales’s live petition does not specify whether Lara and Obregon were sued in

their official or individual capacities or both. On appeal, she argues that her suit was

brought against the defendants in their individual capacities only. 5 She contends that,

because they were sued in their individual capacities only, they may not assert

governmental immunity as a defense, but may instead may only raise the defense of

official immunity. Official immunity is a defense available to government employees sued

in their individual capacity, and is applicable only when the suit at issue “aris[es] from the

performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting

within the scope of their authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653

(Tex. 1994). When official immunity shields a governmental employee from liability,

sovereign immunity shields the governmental employer from vicarious liability. Univ. of

Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); see DeWitt v. Harris Cty., 904 S.W.2d

650, 653 (Tex. 1995).6


        5 Perales notes that her live petition states that each defendant is “an individual who is a resident

of Texas [and] has been served with process and answered herein.” The petition does not state, however,
in which capacity those individuals were sued.
         6 Citing DeWitt, the Texas Supreme Court stated in Franka that “a successful assertion of official

immunity results in a waiver of governmental immunity” under the TTCA. Franka v. Velasquez, 332 S.W.3d
367, 383–84, n.79 (Tex. 2011) (citing DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995)). This was
evidently erroneous; under DeWitt, a successful assertion of official immunity results in the retention of
governmental immunity. See DeWitt, 904 S.W.2d at 653 (holding that, under the TTCA, the governmental
unit’s respondeat superior liability is predicated upon the liability of its employee and observing that “[i]t

                                                      8
        We need not decide whether official immunity applies because we disagree that

Perales’s suit was brought against Lara and Obregon in their individual capacities.

Section 101.106(f) of the TTCA provides that suits brought against government

employees are “considered to be against the employee in the employee’s official capacity

only” when the suit (1) is “based on conduct within the general scope of that employee’s

employment” and (2) “could have been brought under [the TTCA] against the

governmental unit.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (emphasis added).

And the Texas Supreme Court has held that, “[b]ecause the [TTCA] is the only, albeit

limited, avenue for common-law recovery against the government, all tort theories alleged

against a governmental unit, whether it is sued alone or together with its employees, are

assumed to be ‘under [the TTCA]’ for purposes of section 101.106.” Garcia, 253 S.W.3d

at 659; see Franka, 332 S.W.3d at 375 (noting that “any tort claim against the government

is brought ‘under’ the [TTCA] for purposes of section 101.106, even if the [TTCA] does

not waive immunity”).           Accordingly, section 101.106(f) “foreclose[s] suit” against a

government employee “if he was acting within the scope of employment,” regardless of

the capacity in which the employee is nominally sued. Franka, 332 S.W.3d at 381–82.7

        Therefore, the only pertinent question here is whether, under the standard of

review applicable to jurisdictional pleas, Perales’s suit is based on conduct of Lara and



would serve no legislative purpose to declare a waiver of sovereign immunity when the basis of liability is
respondeat superior and the acts of the employee are covered by official immunity”); see also Univ. of
Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).
        7 There is an exception to this rule for ultra vires claims, which are claims “directed toward
determining or protecting a party’s rights against a state official acting without legal or statutory authority.”
Beeman v. Livingston, 468 S.W.3d 534, 538 (Tex. 2015). But such actions are permissible only to the
extent they seek prospective remedies such as injunctive relief, rather than retrospective remedies such as
damages. City of El Paso v. Heinrich, 284 S.W.3d 366, 373–74 (Tex. 2009). Perales’s live petition does
not purport to raise an ultra vires claim, nor does it seek prospective remedies. Therefore, this exception
does not apply.

                                                       9
Obregon that was within the general scope of their employment. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.106(f). If so, the trial court was required to dismiss the suit. See

id.8 Under the TTCA, “scope of employment” means “the performance for a governmental

unit of the duties of an employee’s office or employment and includes being in or about

the performance of a task lawfully assigned to an employee by competent authority.” Id.

§ 101.001(5) (West, Westlaw through 2017 1st C.S.). The Texas Supreme Court has

stated that the scope-of-employment analysis is “fundamentally objective” and asks

whether there is a “connection between the employee’s job duties and the alleged tortious

conduct.” Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017).

       Perales alleged in her live petition that Lara and Obregon “conspired to keep her

application for employment from being processed so as to prevent any school principal

from considering [her] application for employment.”                     She further alleged that they

“fraudulently claimed that her application was posted within the school district for

consideration of employment” and “ultimately prevented the school district from re-hiring

[her] for the subsequent school years.” We conclude that these allegations, taken as true,

concern only conduct within the general scope of Lara’s and Obregon’s employment with

the District.




       8   Subsection 101.106(f) provides in its entirety as follows:
       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.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West, Westlaw through 2017 1st C.S.). Perales did not
file amended pleadings dismissing Lara and Obregon and naming the District as a defendant.

                                                      10
        Under the Texas Education Code, a school district’s board of trustees is required

to “adopt a policy providing for the employment and duties of district personnel” under

which “the superintendent has sole authority to make recommendations to the board

regarding the selection of all personnel other than the superintendent, except that the

board may delegate final authority for those decisions to the superintendent.” TEX. EDUC.

CODE ANN. § 11.1513(a) (West, Westlaw through 2017 1st C.S.). Perales notes that Lara

and Obregon have not produced evidence showing that the board has delegated “final

authority” over employment decisions to the superintendent, but that does not change the

fact that the superintendent has “sole authority” to make recommendations to the board

regarding those decisions. See id. She concedes that employment applications are first

presented to the superintendent and assistant superintendent, and that those officials

screen the applications before presenting them to school principals and, eventually, the

board of trustees.9 If, as alleged, Lara and Obregon conspired to exclude Perales’s

employment application as part of their screening process, that action was connected to

their job duties and constituted the “performance of a task lawfully assigned to an

employee by competent authority.” See id. § 101.001(5); Laverie, 517 S.W.3d at 753.10

        For the foregoing reasons, we conclude that the facts alleged in Perales’s live

petition, construed liberally and taken as true, do not affirmatively show that the trial court




         9 According to a job description attached to his affidavit, Lara’s job duties includes “[o]versee[ing]

the district application and screening process and ensur[ing] that the district is represented as an attractive
employer.”
        10  This would be true even if Lara and Obregon were “motivated by ulterior motives or personal
animus.” See Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). We note that Perales does not
explicitly allege that Lara or Obregon were so motivated.

                                                     11
has jurisdiction.11 See Miranda, 133 S.W.3d at 226. Accordingly, the trial court did not

err in granting the plea to the jurisdiction. Perales’s first issue is overruled.

       As to Perales’s second issue, in which she asks that we remand for the opportunity

to amend her pleadings, she has not supported this issue with argument or authority, so

it is waived. See TEX. R. APP. P. 38.1(i). We note in any event that Perales’s live petition

affirmatively demonstrates incurable defects in jurisdiction; therefore, she would not be

entitled to the opportunity to amend her pleadings even if the issue were adequately

briefed. See Miranda, 133 S.W.3d at 226–27.

                                         III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                              DORI CONTRERAS
                                                              Justice


Delivered and filed the
11th day of January, 2018.




      11 In light of this conclusion, we need not address Perales’s argument on appeal that Lara’s and

Obregon’s affidavits were “conclusory and self-serving.”

                                                 12
