              NUMBERS 13-15-00517-CV and 13-15-00523-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

BROOKS DITTO, BILLY PEMBLETON,
AND KARINA CASTANEDA,                                                    Appellants,

                                           v.

JUDITH CAMPOS AND JESSY CAMPOS,                                            Appellees.


               On appeal from the County Court at Law No. 1
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION
             Before Justices Benavides, Perkes, and Longoria
               Memorandum Opinion by Justice Benavides
      In these consolidated interlocutory appeals, we are asked to determine whether

the trial court erred in failing to sustain appellants Brooks Ditto, Billy Pembleton, and

Karina Castaneda’s (collectively “appellants” unless otherwise identified) jurisdictional

challenges. We reverse and remand.
                                           I.      BACKGROUND

          Judith and Jessy Campos sued appellants and others 1 related to issues

surrounding Jessy and Castaneda’s biological son. The child at issue is unnamed and

not fully identified in the pleadings below—however, the pleadings identify Judith as the

child’s stepmother and Jessy and Castaneda as the child’s biological parents.

According to the pleadings, Judith and Jessy suspected that Castaneda or others were

abusing the child while the child was in Castaneda’s care. These suspicions led the

Camposes to place a small recording device in the child’s shoe when the child visited

Castaneda.

          Castaneda, who is a police officer with the Weslaco Police Department, discovered

the recording device and filed charges against Jessy with the Weslaco Police

Department.          According to the Camposes’ pleadings, Castaneda then “used her position

as a police officer” with the Weslaco Police Department and the cooperation and

complicity of Castaneda’s fellow police officers Ditto and Pembleton to effect Jessy’s

arrest.       Judith and Jessy sued appellants related to the arrest and alleged causes of

action for malicious prosecution and abuse of process.                    Judith and Jessy asserted

damages resulting from the alleged wrongful acts, including loss of consortium, past and

future pain and suffering, and past and future mental anguish.

          Appellants answered the Camposes’ lawsuit and asserted defenses of

governmental, sovereign, and official immunity.              Appellants later filed a Rule 91a Motion




          1   The other defendants who are not parties to this appeal include: Seashell Germaine and Danny
Elizondo.


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to Dismiss, see TEX. R. CIV. P. 91a, alleging that the Camposes’ allegations have no basis

in law because the allegations against appellants in their individual capacities should be

dismissed and immunity bars the Camposes’ causes of action against appellants in their

official capacities.     Appellants then filed a plea to the jurisdiction, reiterating the

arguments contained in their Rule 91a motion to dismiss. The trial court subsequently

denied appellants’ plea to the jurisdiction as well as their Rule 91a motion to dismiss, and

these two appeals ensued.2

                                 II.     PLEA TO THE JURISDICTION

        By their first issue, appellants assert that the trial court erred by denying their plea

to the jurisdiction.

A.      Standard of Review

        A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause

of action without regard to whether the claims asserted have merit.              Bland Ind. Sch. Dist.

v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Subject-matter jurisdiction is essential to a

court’s power to decide a case.           Id. 554–55.      Whether a court has jurisdiction is a

question of law that is reviewed de novo.         City of Elsa v. Gonzalez, 325 S.W.3d 622, 625

(Tex. 2010); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

When reviewing a trial court’s ruling on a challenge to its jurisdiction, we consider the

plaintiff’s pleadings and factual assertions, as well as any evidence in the record that is

relevant to the jurisdictional issue.      City of Elsa, 325 S.W.3d at 625.


        2  In appellate cause number 13-15-00517-CV, appellants appeal the denial of their plea to the
jurisdiction, and in appellate cause number 13-15-00523-CV, appellants appeal the denial of their Rule 91a
motion to dismiss. We consolidated the cases for briefing. Despite an order from this Court to do so, the
Camposes did not file a brief in this appeal.


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          We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’

intent.    Miranda, 133 S.W.3d at 226.       If the pleadings do not contain sufficient facts to

affirmatively demonstrate jurisdiction but do not affirmatively demonstrate incurable

defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiffs should be

afforded the opportunity to amend.            Id.       If the pleadings affirmatively negate the

existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing

the plaintiffs an opportunity to amend.             Id. at 226–27.    However, if a plea to the

jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence

submitted by the parties when necessary to resolve the jurisdictional issues raised, as the

trial court is required to do so.       Id. at 227.       If the evidence creates a fact question

regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact finder.             Id. at 227–28.

However, if the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea as a matter of law.     Id. at 228.

B.        Discussion

          1.     Capacity of the Appellants

          Appellants argue that because the Camposes have sued them for actions taken

as law enforcement officers acting within the course and scope of their employment as

Weslaco city police officers, any actions against them individually must be dismissed.

We agree.

          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

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        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 2015 R.S.). The

civil practice and remedies code defines “scope of employment” as 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.      See id.   § 101.001(5) (West, Westlaw through 2015 R.S.).

        First, the Camposes’ petition clearly states that Castaneda “used her position as a

police officer with the Weslaco police department and had the Weslaco police department

file charges against and obtain the arrest of      . . . Jessy Campos.” Furthermore, the

appellants attached two pieces of undisputed evidence relevant to our jurisdictional

inquiry.   The first is a notice of claim letter under civil practice and remedies code section

101.101 sent by the Camposes’ attorney to then-Weslaco Mayor David Suarez related to

this litigation.   See id. § 101.101 (West, Westlaw through 2015 R.S.) (mandating a notice

of claim procedure for actions brought against governmental units describing the damage

or injury that occurred, the time and place of the incident, and the incident). In the letter,

the Camposes state that Castaneda “used her title, under the color of law, with the

Weslaco Police Department to pursue this frivolous, nonsensical, criminal complaint

against Jessy Campos.” Additionally, the notice of claim alleges that Pembleton and

Ditto acting as Weslaco police officers “assisted [Castaneda in] carry[ing] out this

miscarriage of justice” that caused the Camposes harm.                The second piece of

jurisdictional evidence is an affidavit signed by Ted Walensky, the assistant police chief

for the Weslaco Police Department. Walensky stated in his affidavit that he is familiar

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with the Camposes’ lawsuit and further asserted that “all actions taken by [the appellants]

as to the investigation of and arrest of Jessy Campos . . . .” related to actions in which the

appellants were “wholly and completely within the course and scope of their employment

with the City of Weslaco as police officers.” Finally, Walensky asserted that the tasks

performed by the appellants related to this lawsuit were “tasks lawfully assigned to them

by the City of Weslaco police department, and . . . not undertaking any independent

course of conduct not intended by the City of Weslaco police department.”

       Therefore, after construing the Camposes’ petition and factual assertions liberally,

we conclude that they implicated the appellants’ conduct within the scope of their

employment as Weslaco city police officers. As a result, we consider this to be a lawsuit

against the appellants in their official capacities only.   See id. § 101.106(f).

       2.     Immunity from the Camposes’ Claims

       Generally, an employee sued in his official capacity, as here, has the same

governmental immunity, derivatively, as his government employer.              See Franka v.

Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011); City of El Paso v. Heinrich, 284 S.W.3d

366, 380 (Tex. 2009) (noting the ultra vires exception). The Texas Tort Claims Act does

not waive immunity for intentional torts.      See TEX. CIV. PRAC. & REM. CODE ANN. §

101.057(2) (West, Westlaw through 2015 R.S.). In this case, Campos asserted claims

of malicious prosecution and abuse of process, both of which are intentional torts, which

entitle the appellants to immunity.    See City of Hempstead v. Kmiec, 902 S.W.2d 118,

122 (Tex. App.—Houston [1st Dist.] 1995, no writ) (recognizing malicious prosecution as

an intentional tort); see also Sampson v. Tex. Dep’t of Pub. Safety, No. 09-12-005237-

CV, 2013 WL 3488255, at *1 (Tex. App.—Beaumont July 11, 2013, no pet.) (mem. op.)

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(recognizing abuse of process as an intentional tort).      Therefore, we hold that the

appellants are entitled to immunity against the Camposes’ claims. We further conclude

that the trial court erred in denying the appellants’ plea to the jurisdiction. We sustain

the appellants’ first issue.

                                   III.   CONCLUSION

       We reverse the trial court’s order denying the appellants’ plea to the jurisdiction

and remand the case to the trial court for entry of an order dismissing the Camposes’

lawsuit.   Because our decision in cause number 13-15-00517-CV disposes of the

underlying case, grants appellants their desired relief, and renders the issue in cause

number 13-15-00523-CV moot, we need not analyze the issue appealed in cause number

13-15-00523-CV.      See TEX. R. APP. P. 47.1.




                                                              GINA M. BENAVIDES,
                                                              Justice



Delivered and filed the
23rd day of November, 2016.




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