                                                                                      ACCEPTED
                                                                                 04-14-00674-CV
                                                                      FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                            3/18/2015 5:41:22 PM
                                                                                   KEITH HOTTLE
                                                                                          CLERK

                       NO. 04-14-00674-CV

                                                               FILED IN
                                          4th COURT OF APPEALS
            IN THE COURT OF APPEALS FOR THE
                                           SAN ANTONIO, TEXAS
                FOURTH DISTRICT OF TEXAS
                                          03/18/2015 5:41:22 PM
                   SAN ANTONIO, TEXAS
                                                         KEITH E. HOTTLE
                                                              Clerk

                       JOHN M. DONOHUE,
                                                                  Appellant,

                                v.

BANDERA COUNTY SHERIFF’S DEPARTMENT; DANIEL R. BUTTS, SHERIFF;
 J.J. MARTINEZ, DEPUTY; DEPUTY JOHN JOE #1; DEPUTY JOHN DOE #2;
    AND DEPUTY JOHN DOE #3, INDIVIDUALLY, JOINTLY, SEVERALLY
                 AND IN THEIR OFFICIAL CAPACITY,
                                                          Appellees.


 On Appeal From the 198th District Court of Bandera County, Texas
               Trial Court Cause No. CV-14-180
        The Honorable M. Rex Emerson, Judge Presiding


                     BRIEF OF APPELLEES


                                     MICHAEL SHAUNESSY
                                     State Bar No. 18134550
                                     mshaunessy@mcginnislaw.com
                                     ERIC JOHNSTON
                                     State Bar No. 24070009
                                     ejohnston@mcginnislaw.com
                                     MCGINNIS LOCHRIDGE, LLP
                                     600 Congress Avenue, Suite 2100
                                     Austin, Texas 78701
                                     512.495.6000 (telephone)
                                     512.505.6364 (telecopier)

                                     Attorneys for Appellees
                  IDENTITY OF PARTIES AND COUNSEL

      A complete list of all parties to trial court’s judgment, together with the

names and addresses of all trial and appellate counsel, appears below.

Appellant:                                      John M. Donohue

Trial and Appellant Counsel for Appellant: John M. Donohue, Pro Se
                                           TDCJ #1895073
                                           Duncan Unit
                                           1502 South 1st Street
                                           Diboll, Texas 75941

Appellees:                                      Bandera County Sheriff’s
                                                Department; Daniel R. Butts,
                                                Sheriff; J.J. Martinez, Deputy;
                                                Deputy John Joe #1; Deputy John
                                                Doe #2; and Deputy John Doe #3,
                                                Individually, Jointly, Severally
                                                and In Their Official Capacity

Trial and Appellant Counsel for Appellees: MICHAEL SHAUNESSY
                                           State Bar No. 18134550
                                           mshaunessy@mcginnislaw.com
                                           ERIC JOHNSTON
                                           State Bar No. 24070009
                                           ejohnston@mcginnislaw.com
                                           MCGINNIS LOCHRIDGE, LLP
                                           600 Congress Avenue, Suite 2100
                                           Austin, Texas 78701
                                           512.495.6000 (telephone)
                                           512.505.6364 (telecopier)




                                         ii
                                        TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES ................................................................................... iv

RECORD REFERENCES .........................................................................................1

STATEMENT OF THE CASE ..................................................................................1

REQUEST FOR ORAL ARGUMENT .....................................................................1

ISSUES PRESENTED...............................................................................................2

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................4

ARGUMENT .............................................................................................................4

         I.       Standard of Review ............................................................................... 4

         II.      Appellant Files suit Against Bandera County, Not the
                  Officer in their Individual Capacities .................................................... 6
         III.     Immunity ...............................................................................................7

                  A. Bandera County is Protected by the Doctrine of
                     Governmental Immunity and, thus, Enjoys
                     Immunity from Suit ........................................................................ 7

                  B. The Component Elements of Sovereign Immunity ........................ 9

                  C. The TTCA does not Waive Immunity from Suit ..........................10


                                                           iii
                  D. No Waiver Exists to Recover Damage to Appellant's
                     Truck .............................................................................................13

         IV.      Appellant has Filed a Civil Suite ........................................................13

         V.       The Court Correctly Denied Appellant's Motion to
                  Release Information, Because No Possible Amendment
                  Could Cure The Jurisdictional Defect .................................................14

PRAYER ..................................................................................................................15

CERTIFICATE OF SERVICE ................................................................................16

CERTIFICATE OF COMPLIANCE .......................................................................17




                                                            iv
                                  TABLE OF AUTHORITIES
Cases

 Alexander v. Walker,
     435 S.W.3d 789 (Tex. 2014) ...........................................................................6

 Ben Bolt Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political
 Subdivisions Prop. Cas. Self Ins. Fund,
    212 S.W.3d 320 (Tex. 2006) ........................................................................... 8
 Bland Indep. Sch. Dist. v. Blue,
    34 S.W.3d 547 (Tex. 2000) ............................................................................. 9

 Catalina Dev., Inc. v. County of El Paso,
    121 S.W.3d 704 (Tex. 2003) ........................................................................... 9
 City of Canyon v. McBroom,
     121 S.W.3d 410 (Tex. App.–Amarillo 2003, no pet. h.) ................................. 5

 City of El Paso v. Heinrich,
     284 S.W.3d 366 (Tex. 2009) ........................................................................... 8
 City of Houston v. Arney,
     680 S.W.2d 867 (Tex. App.–Houston [1st Dist.] 1984, no writ) .................. 10

 City of Houston v. Williams,
     353 S.W.3d 128 (Tex. 2011) ........................................................................... 8

 City of Weslaco v. Cantu,
     No. 13-03-361-CV, 2004 WL 210790 (Tex. App.–Corpus Christi,
     Feb. 5, 2004, no pet.) .......................................................................................5

 County of Cameron v. Brown,
    80 S.W.3d 549 (Tex. 2002) ............................................................................. 5

 Dallas Area Rapid Transit v. Whitley,
    104 S.W.3d 540 (Tex. 2003) ...........................................................................5

 Federal Sign v. Texas Southern University,
    951 S.W.2d 401 (Tex. 1997) ........................................................................... 9




                                                       v
Forbes v. Lanzl,
   9 S.W.3d 895 (Tex. App.–Austin 2000, pet. denied) ....................................11

Gen. Servs. Comm'n v. Little-Tex Installation Co.,
   39 S.W.3d 591 (Tex. 2001) ...........................................................................15

Goodman v. Harris County,
   571 F.3d 388(5th Cir. 2009) ..........................................................................12

Hardin Cty. Community Supervision and Corrections Dep't v. Sullivan,
   106 S.W.3d 186 (Tex. App.–Austin 2003, pet. denied) .................................. 5

Harris Cty. v. Cabazos,
   177 S.W.3d 105 (Tex. App.–Houston [1st Dist.] 2005, no pet.).............12, 13

Harris Cty. v. Sykes,
   136 S.W.3d 635 (Tex. 2004) .........................................................................14
Harris Cty. Hosp. Dist. v. Tomball Reg'l Hosp.,
   283 S.W.3d 838 (Tex. 2009) ........................................................................... 9
Heigel v. Wichita County,
   84 Tex. 392, 19 S.W. 562 (1892) .................................................................... 7
Leatherwood v. Prairie View A&M Univ.,
   No. 01-02-61334-CV, 2004 WL 253275 ........................................................ 5
Lowe v. Tex. Tech Univ.,
   540 S.W.2d 297 (Tex. 1976) ........................................................................... 7
Morris v. Copeland,
   944 S.W.2d 696 (Tex. App.–Corpus Christi 1997, no writ) .........................12

Rolling Plains Groundwater Conservation Dist. v. City of Aspermont,
    353 S.W.3d 756(Tex. 2011) ........................................................................7, 8
Rusk State Hospital v. Black,
   392 S.W.3d 88 (Tex 2012) .............................................................................. 9
Smith v. Davis,
   999 S.W.2d 409 (Tex. App.–Dallas 1999, no pet.) ......................................... 7




                                                   vi
State v. Lueck,
    290 S.W.3d 876 (Tex. 2009) ...........................................................................9

Sw. Bell Tel., L. P. v. Harris County Toll Road Auth.,
    282 S.W.3d 59 (Tex. 2009) .............................................................................8

Tex. A&M Univ. Sys v. Koseoglu,
    233 S.W.3d 835 (Tex. 2007) .........................................................................14

Tex. Ass'n of Bus. v. Tex. Air Control,
    852 S.W.2d 440 (Tex. 1993) ...................................................................4, 5, 6

Tex. Bay Cherry Hill L.P. v. City of Fort Worth,
    257 S.W.3d 379 (Tex.App.–Fort Worth 2008, no pet.) .................................. 6

Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc.,
    145 S.W.3d 170 (Tex. 2004) ........................................................................... 8
Tex. Dep't of Transp. v. Jones,
    8 S.W.3d 636 (Tex. 1999) ...............................................................................9
Tex. Dep't of Transp. v. Ramirez,
    74 S.W.3d 864 (Tex 2002) ..............................................................................5
Tex. Dep't of Transp. v. Sefzik,
    2011 WL 5041969 (Tex. Oct. 21, 2011) ......................................................... 8
Tex. Home Mgmt. v. Peavy,
    89 S.W.3d 30 (Tex. 2002) ............................................................................... 8
Texas Attorney General's Office v. Ngakoue,
   2013 WL 4608867 (Tex. 2013) ....................................................................... 6

Texas Dep't Pub. Safety v. Petta,
   44 S.W.3d 575 (Tex. 2001) .....................................................................12, 13

Tex. Natural Resource Conservation Com'n v. IT Davy,
    74 S.W.3d 849 (Tex. 2002) .......................................................................9, 15
Univ. of Tex. at Austin v. Hayes,
   327 S.W.3d 113 (Tex. 2010) .........................................................................10




                                                   vii
  Wal-mart Stores v. Rodriguez,
     92 S.W.3d 502 (Tex. 2002) ...........................................................................11

  Wal–Mart Stores, Inc. v. Odem,
     929 S.W.2d 513 (Tex. App.–San Antonio 1996, pet. denied) ......................11

  Wichita Falls State Hosp.,
     106 S.W.3d at 692 .......................................................................................8, 9


Statutes
  TEX. CIV. PRAC. & REM. CODE §§ 101.021(1)-(2), 101.022 ................................10
  TEX. CIV. PRAC. & REM. CODE §101.021 .......................................................10, 13

  TEX. CIV. PRAC. & REM. CODE §101.057 .............................................................12
  TEX. CIV. PRAC. & REM. CODE §101.106(a)........................................................... 7

  TEX. CIV. PRAC. & REM. CODE §101.106(e)........................................................... 6
  TEX. CODE CRIM. PROC. Art. 2.01-2.021 ..............................................................14
  TEX. CODE CRIM. PROC. Art. 3.02 ........................................................................14

  TEX. PENAL CODE § 22.01 ....................................................................................11

Rules
 Texas Rule of Appellate Procedure 9.4(i)(2) .......................................................17




                                                      viii
                            RECORD REFERENCES

      Appellees will make use of the following abbreviations in their Brief:

               Clerk’s Record                        CR page
               Reporter’s Record                     RR page
               Appellant’s Brief                     Brief page

                           STATEMENT OF THE CASE

Description:                                 Suit for damages against governmental
                                             entity elected officials and employees
                                             based on intentional torts in the form of
                                             personal injuries suffered during arrest.
Trial Court Judge:                           The Honorable M. Rex Emerson
Trial Court:                                 198th Judicial District Court, Bandera
                                             County, Texas
Trial Court Disposition:                     Final Judgment
Appellant:                                   John M. Donohue
Appellees:                                   Bandera County Sheriff’s Department;
                                             Daniel R. Butts, Sheriff; J.J. Martinez,
                                             Deputy; Deputy John Joe #1; Deputy
                                             John Doe #2; and Deputy John Doe #3,
                                             Individually, Jointly, Severally and In
                                             Their Official Capacity
Action for Which Relief is Sought:           Review of district court’s entry of final
                                             judgment granting Appellees’ plea to
                                             the jurisdiction and dismissing the suit.

                      REQUEST FOR ORAL ARGUMENT

      Appellees believe that oral argument is unnecessary because the issues

presented to this Court may be clearly decided through briefing and reliance on

longstanding legal precedence. If the Court decides to grant oral argument, then

Appellees request permission to participate.



                                         1
                              ISSUES PRESENTED

      Appellant points out five errors in the trial court’s order on Appellees’ Plea

to the Jurisdiction. Although all of Appellant’s points of error are addressed in the

following Brief, Appellees believe that the only pertinent issues are as follows:

1.    Did Bandera County have immunity from suit thereby denying the district

      court of jurisdiction over Appellant’s claims?

2.    Was it proper for the trial court to deny Appellant’s Motion to Release

      Information?


                            STATEMENT OF FACTS

      On June 4, 2014, Plaintiff/Appellant John Michael Donohue (“Appellant”)

filed with the 198th Judicial District Court of Bandera County, Texas an Original

Notice of Assault and False Imprisonment (the “Notice of Intentional Torts”). CR

6-13. Appellant names Sheriff Daniel R. Butts (“Sheriff Butts”) and two John Does

as defendants. Appellant specifically states in his pleading that he is suing all

defendants in their official and individual capacities. CR 6. Appellant alleges that

he suffered personal injuries during his arrest by the Bandera County Sheriff’s

Office (“BCSO”). CR 8. Appellant states in the Notice of Intentional Torts that he

is bringing claims under Chapter 20 and 22 of the Texas Penal Code. CR 8.

Appellant alleges that Sheriff Butts, through vicarious liability, committed false

imprisonment, assault, and aggravated assault. CR 9. Appellant also notes in the

                                          2
Notice of Intentional Torts that he is seeking compensatory and punitive damages.

CR 9.

        Then, on June 11, 2014, Appellant filed his Original Notice of Complaints

and Claims for Relief (“Notice of Claims”). CR 21-27. Appellant names as

defendants, Sheriff Butts, Deputy J.J. Martinez (“Deputy Martinez”) and three

John Does as defendants. CR 21. In this pleading, Appellant notes that he is suing

all defendants in their individual and official capacities. CR 21. Appellant alleges

that he is seeking respondeat superior liability of Sheriff Butts for the actions of

BCSO deputies firing shots at Appellant’s truck. CR 23. Appellant does not allege

that Sheriff Butts was involved in his arrest. CR 6-11, 21-27. Through the Notice

of Claims, Appellant seeks compensatory and punitive damages and restitution in

an amount equal to the value of his truck. CR 24. Sheriff Butts and Deputy

Martinez were served with both the Notice of Intentional Torts and the Notice of

Claims. CR 6-11, 45, 47.

        Only July 7, 2014, Appellees filed their Plea to the Jurisdiction, Plea in

Abatement, and Original Answer. CR 87-93. Appellees asserted that the trial court

lacked subject matter jurisdiction, because Appellees enjoy immunity from suit.

CR 87. After a hearing in which Appellant appeared via telephone, the trial court

granted Appellees’ Plea to the Jurisdiction. RR 2, 13-14. On August 29, 2014, the

trial court signed an order dismissing Appellant’s claims with prejudice. CR 110.


                                         3
                       SUMMARY OF THE ARGUMENT

      Bandera County is a governmental entity that is protected by governmental

immunity, a component of which is immunity from suit. In order to bring a lawsuit

against a governmental entity, a plaintiff must be able to plead a clear and

unequivocal waiver of immunity from suit created by the legislature. Appellant’s

claims, all of which are based on intentional torts, are not subject to any waiver of

immunity. Rather, the Texas Tort Claims Act (“TTCA”) clearly provides that

claims based on intentional torts are expressly barred. Because Appellant does not

and cannot plead a waiver of immunity from suit, the trial court did not have

subject matter jurisdiction over Bandera County. The trial court correctly granted

Bandera County’s plea to the jurisdiction and denied Appellant’s Motion to

Release Information.

                                   ARGUMENT

I.    Standard of Review.

      While a court must construe a plaintiff’s pleading to determine the intent of

the pleading, a court cannot liberally construe the question of law regarding

whether there is a waiver of immunity from suit. When a plea to the jurisdiction is

based on plaintiff’s pleadings, as opposed to plaintiff’s ability to prove

jurisdictional facts, the trial court and court of appeal’s review is limited to the

four-corners of the plaintiff’s live pleading. Tex. Ass’n of Bus. v. Tex. Air Control,


                                          4
852 S.W.2d 440, 446 (Tex. 1993). A plaintiff must affirmatively plead a valid

waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex.

2003). Courts must construe the pleadings in plaintiff’s favor and look to plaintiff’s

intent in determining if plaintiff plead facts that would have established a waiver of

immunity from suit. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.

2002); Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex 2002); Tex.

Ass’n of Bus., 852 S.W.2d at 446.

      The plaintiff’s live pleading must demonstrate, by the facts alleged or

reference to statute or other provisions of law, that immunity from suit has been

waived. Leatherwood v. Prairie View A&M Univ., No. 01-02-61334-CV, 2004 WL

253275 (Tex. App.–Houston [1st Dist.], Feb. 12, 2004, no pet. h.); City of Weslaco

v. Cantu, No. 13-03-361-CV, 2004 WL 210790 (Tex. App.–Corpus Christi, Feb. 5,

2004, no pet.); City of Canyon v. McBroom, 121 S.W.3d 410 (Tex. App.–Amarillo

2003, no pet. h.); Hardin Cty. Community Supervision and Corrections Dep’t v.

Sullivan, 106 S.W.3d 186, 189 (Tex. App.–Austin 2003, pet. denied).

      Appellant argues that the trial court should have allowed discovery and

considered whether he might prove facts that can establish jurisdiction. However,

when a plea to the jurisdiction challenges whether Appellant has plead a waiver of

immunity from suit, as in this case, the court’s review is limited to the pleadings




                                          5
and the court does not consider what, if any, evidence might be offered at trial.

Tex. Ass’n of Bus, 852 S.W.2d at 446.

II.   Appellant Files suit Against Bandera County, not the Officers in their
      Individual Capacities.

      Appellant argues that he has not brought suit against a governmental entity

but, rather, against the individual defendants in their personal capacities. Brief 4.

Appellant admits that he brings suit against all defendants in their official and

personal capacity. Brief 8. The Texas Civil Practice & Remedies Code finds that

Appellant, as a matter of law, sues all individuals in their official capacity.

Pursuant to Texas Civil Practices & Remedies Code §101.106(e) “[i]f a suit is filed

under this chapter against both a governmental unit and any of its employees, the

employees shall immediately be dismissed on the filing of a motion by the

governmental unit.” TEX. CIV. PRAC. & REM. CODE §101.106(e). Section 101.106

applies regardless of whether an employee is sued in his official capacity or

individual capacity. See, e.g., Tex. Bay Cherry Hill L.P. v. City of Fort Worth, 257

S.W.3d 379, 401 (Tex.App.–Fort Worth 2008, no pet.) ([a] “suit under the [TTCA]

against a governmental unit bars a same-subject-matter suit against an employee in

both the employee’s official and individual capacities”); see also Alexander v.

Walker, 435 S.W.3d 789 (Tex. 2014) (if substance of plaintiff’s claim is predicated

on actions in course or scope of responsibilities as official or employee, then claim

is against the entity and not the individuals); Texas Attorney General’s Office v.

                                         6
Ngakoue, 2013 WL 4608867, at *6-7 (Tex. 2013). Any suit brought against Sheriff

Butts or his deputies in their official capacities is a suit against the governmental

entity–Bandera County. See Smith v. Davis, 999 S.W.2d 409, 416 (Tex. App.–

Dallas 1999, no pet.). Because Appellant stated he was suing the individual

defendants in their official capacity and later sued them in their official and

individual capacities, by operation of law, he makes an irrevocable election to sue

Bandera County and is barred from pursuing suit against the individuals. See TEX.

CIV. PRAC. & REM. CODE §101.106(a).

III.   Immunity

       A.      Bandera County is Protected by the Doctrine of Governmental
               Immunity and, thus, Enjoys Immunity from Suit

       Bandera County enjoys governmental immunity, the name for sovereign

immunity applicable to local governmental entities. Lowe v. Tex. Tech Univ., 540

S.W.2d 297 (Tex. 1976) (sovereign immunity extends to the political subdivisions

of the state, including counties); see also Heigel v. Wichita County, 84 Tex. 392,

19 S.W. 562, 563 (1892); Rolling Plains Groundwater Conservation Dist. v. City

of Aspermont, 353 S.W.3d 756, 759 (Tex. 2011) (per curiam) (sovereign immunity,

as it applies to local governmental entities, is referred to as governmental

immunity). 1


1
 While the technical name of the immunity enjoyed by local governmental entities is different,
governmental immunity offers counties and other local governmental entities the same degree of

                                              7
       In part, sovereign immunity serves the purpose of protecting tax revenues

from being spent on the costs of litigation and judgments, as opposed to their

intended purpose, which is the provision of governmental services.2 Ben

Bolt-Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political Subdivisions Prop. Cas.

Self Ins. Fund, 212 S.W.3d 320 (Tex. 2006); Tex. Dep’t of Transp. v. Sefzik, 2011

WL 5041969 (Tex. Oct. 21, 2011) *4; Rolling Plains Groundwater, 353 S.W.3d at

760; Wichita Falls State Hosp., 106 S.W.3d at 692. The purpose of sovereign

immunity “is pragmatic: to shield the public from the cost and consequences of

imprudent actions of their government.” Id. (internal quotation omitted); City of

Houston v. Williams, 353 S.W.3d 128, 131 (Tex. 2011). Subjecting governmental

entities to litigation and judgments will force governmental entities to take money

from other activities (providing police protection, building public improvements,



protection from suit as is afforded to state entities under sovereign immunity. Id.
(“[g]overnmental immunity, like the doctrine of sovereign immunity to which it is appurtenant,
involves two issues: whether the State has consented to suit and whether the State has accepted
liability”). For ease of reference, throughout this brief, sovereign immunity and governmental
immunity are collectively referred to as sovereign immunity.
2
  Additionally, sovereign immunity precludes second guessing of certain governmental actions
and decisions. See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145
S.W.3d 170, 198 (Tex. 2004); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 371-73 &
n.6 (Tex. 2009) (litigation cannot be utilized “to control state action by imposing liability on the
State”) (italics in the original). Thus, policy level decisions, decisions regarding budgeting and
allocation of resources, decisions regarding the provision of certain services (fire, police, and
emergency services) and decisions regarding the design of public works cannot be the bases of
suit. Sw. Bell Tel., L. P. v. Harris County Toll Road Auth., 282 S.W.3d 59, 68 (Tex. 2009). “As
we have often noted, the Legislature is best positioned to waive or abrogate sovereign immunity
because it allows the Legislature to protect its policymaking function.” Id. (internal quotation
and citation omitted). See Tex. Home Mgmt. v. Peavy, 89 S.W.3d 30, 43 (Tex. 2002); TEX. CIV.
PRAC. & REM. CODE § 101.021.

                                                 8
and providing social services) and expend those funds to defend lawsuits and pay

judgments. Wichita Falls State Hosp., 106 S.W.3d at 698; Catalina Dev., Inc. v.

County of El Paso, 121 S.W.3d 704 (Tex. 2003); Rusk State Hospital v. Black, 392

S.W.3d 88 (Tex 2012).

      B.    The Component Elements of Sovereign Immunity

      Sovereign immunity embraces two principals: immunity from suit and
      immunity from liability. First, the State retains immunity from suit
      without legislative consent, even if the State’s liability is not disputed.
      Second, the State retains immunity from liability though the
      Legislature has granted consent to the suit.

Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997)

(citations omitted); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)

(“[i]mmunity from liability and immunity from suit are two distinct principles”).

The Texas Supreme Court went on to explain the effect of immunity from suit.

      Immunity from suit bars a suit against the State unless the State expressly

gives its consent to the suit. Federal Sign, 951 at 405; State v. Lueck, 290 S.W.3d

876 (Tex. 2009) (“[i]mmunity from suit is a jurisdictional question of whether the

State has expressly consented to suit.…”); Harris Cty. Hosp. Dist. v. Tomball Reg’l

Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Because immunity from suit challenges a

court’s jurisdiction, it is properly raised by a plea to the jurisdiction. Jones, 8

S.W.3d at 637; see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.




                                          9
2000). Whether a court has subject matter jurisdiction is a question of law. Tex.

Natural Resource Conservation Com'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002).

      Accordingly, Appellant has the burden of alleging facts that establish a

waiver of immunity from suit. See City of Houston v. Arney, 680 S.W.2d 867 (Tex.

App.–Houston [1st Dist.] 1984, no writ). But, Appellant did not allege any waiver

of immunity in his Original Petition (CR 6-11, 21-27), and the Trial Court

correctly determined that no waiver exists under the circumstances. CR 110. On

this basis alone, Appellant’s claims were properly dismissed.

      C.     The TTCA does not Waive Immunity from Suit

      Under the TTCA, governmental entities, such as Bandera County, are

immune from tort suits, except for the limited waiver of immunity provided for in

the TTCA. TEX. CIV. PRAC. & REM. CODE §101.021. The TTCA waives immunity

from suit for tort claims in narrowly-defined circumstances. See TEX. CIV. PRAC. &

REM. CODE §101.021. Those narrow exceptions include suits against governmental

units for personal injuries caused by: (1) the negligent use of publicly owned

motor-driven vehicles or equipment; (2) a condition or use of tangible personal or

real property; and (3) premise defect or a condition of real property. TEX. CIV.

PRAC. & REM. CODE §§ 101.021(1)-(2), 101.022. To establish the trial court’s

jurisdiction, the plaintiff must allege facts demonstrating jurisdiction, and the court

is to construe the pleadings in plaintiff’s favor. Univ. of Tex. at Austin v. Hayes,


                                          10
327 S.W.3d 113, 116 (Tex. 2010). Appellant’s pleadings establish that his claims

do not arise from the use of a publicly owned automobile, nor do they arise from a

condition or use of tangible personal property, or from a premise defect or a

condition of real property. CR 6-11, 21-27.

      Rather, Appellant’s claims arise from an alleged wrongful arrest made with

the use of allegedly excessive force and being held without probable cause. CR 6-

11, 21-27. Appellant alleges that he was subjected to intentional acts, specifically

that Bandera County’s actions amounted to assault, false imprisonment, and

destruction of personal property. CR 6-11, 21-27.

      The elements of assault are the same in both civil and criminal cases. City of

Watauga v. Gordon 2014 WL 2535995 at *3 (Tex. 2014); Forbes v. Lanzl, 9

S.W.3d 895, 900 (Tex. App.–Austin 2000, pet. denied). A person commits an

assault by: (1) intentionally, knowingly, or recklessly causing bodily injury to

another; (2) intentionally or knowingly threatening another with imminent bodily

injury; or (3) intentionally or knowingly causing physical contact with another

when the person knows or should reasonably believe that the other will regard the

contact as offensive or provocative. TEX. PENAL CODE § 22.01; Forbes, 9 S.W.3d

at 900; Wal–Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 521 (Tex. App.–San

Antonio 1996, pet. denied). Additionally, the elements of false imprisonment also

include intent (i.e., that the defendant willfully detained the plaintiff). See Wal-mart


                                          11
Stores v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). Additionally, the gravamen

of Appellant’s claim regarding his truck is that a BCSO deputy intentionally shot

his truck. CR 22; Brief 3.

      The TTCA explicitly states that it does not apply to claims arising out of an

intentional tort by a governmental employee. City of Watauga, 2014 WL 2535995

at* 3; Goodman v. Harris County, 571 F.3d 388, 394 (5th Cir. 2009) (cert. denied

130 S.Ct. 1146); see also TEX. CIV. PRAC. & REM. CODE §101.057. “If a plaintiff

pleads facts which amount to an intentional tort, no matter if the claim is framed as

negligence, the claim generally is for an intentional tort and is barred by the

[TTCA].” Harris Cty. v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.–Houston [1st

Dist.] 2005, no pet.); see also Texas Dep’t Pub. Safety v. Petta, 44 S.W.3d 575,

580-81 (Tex. 2001) (DPS was immune from false-imprisonment claim against

police officer); Morris v. Copeland, 944 S.W.2d 696, 699 (Tex. App.–Corpus

Christi 1997, no writ) (county was immune from false imprisonment claim against

sheriff). Appellant’s allegations of assault, false imprisonment and destruction of

personal property fit squarely within Section 101.057’s exclusion of claims arising

out of intentional torts because the gravamen of his claims are allegations pf

intentional torts. See TEX. CIV. PRAC. & REM. CODE § 101.057; City of Watauga,

2014 WL 2535995, p. 3; Petta, 44 S.W.3d at 580; Cabazos, 177 S.W.3d at 111.

Specifically, Appellant’s allegations amount to intentional torts because they focus


                                         12
on the conduct of the BCSO deputies in the firing of their pistols, and not on the

use of a government-owned vehicle, the condition or use of personal or real

property, or a premise defect as required by the TTCA. CR 6-11, 21-27. Petta, 44

S.W.3d at 580; Cabazos, 177 S.W.3d at 111. Accordingly, the trial court properly

granted Appellees’ Plea to the Jurisdiction because there is no waiver for

Appellant’s claims.

      D.     No Waiver Exists to Recover Damage to Appellant’s Truck.

      Moreover, to the extent that Appellant seeks damages related to his truck,

Appellant absolutely cannot establish a waiver of immunity from suit. Under the

TTCA, property damage is only recoverable if the “property damage . . . arises

from the operation or use of a [government operated] motor-driven vehicle or

motor-driven equipment.” Tex. Civ. Prac. & Rem. Code §101.021. Appellant does

not allege that any damage to his truck was caused by the operation of a

government owned motor-driven vehicle/equipment. Rather, he alleges that the

damage was caused by the shots fired by BCSO deputies. CR 22. Accordingly,

Appellant cannot establish a waiver of immunity. Again, the trial court was correct

in granting the plea to the jurisdiction.

IV.   Appellant has Filed a Civil Suit.

      Appellant contends that it was wrong of the trial court to dismiss his case

because he was, in fact, seeking relief under the Texas Penal Code. Brief 4.



                                            13
Appellant can offer no authority to support his contention that he has standing to

bring suit under the Texas Penal Code. In fact, the Texas Code of Criminal

Procedure outlines that it is the duties of the district attorney, the county attorney,

or the Texas Attorney General to bring criminal actions on behalf of the State

under the Texas Penal Code. See TEX. CODE CRIM. PROC. Art. 2.01-2.021; see also

TEX. CODE CRIM. PROC. Art. 3.02 (“A criminal action is prosecuted in the name of

the State of Texas against the accused, and is conducted by some person acting

under the authority of the State, in accordance with its laws.”). Regardless of the

lack of authority, Appellant is seeking civil remedies of compensatory and punitive

damages. Thus, the pleadings he filed constitute a civil suit for money damages

and not an action brought pursuant to the Texas Penal Code. CR 9, 25.

V.    The Court Correctly Denied Appellant’s Motion to Release
      Information, Because No Possible Amendment Could Cure the
      Jurisdictional Defect.

      When dismissing based on immunity from suit, the trial court must consider

whether a plaintiff should have the opportunity to amend his pleadings to allege

facts establishing the existence of subject matter jurisdiction. See Harris Cnty. v.

Sykes, 136 S.W.3d 635, 639 (Tex. 2004). However, an opportunity to amend need

not be given when any such amendment would be futile. See Tex. A&M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). In Koseoglu, the Supreme Court

held that a party asserting a breach of contract claim against the state university



                                          14
was not entitled to replead his case where no such repleading could avail the

litigant. Id., citing Gen. Servs. Comm’n v. Little-Tex Installation Co., 39 S.W.3d

591, 598 (Tex. 2001).

      In this case, Appellant cannot plead any fact that would allege a waiver of

Bandera County’s immunity from suit. He asserts intentional torts that are

specifically excepted from any waiver of immunity in the TTCA. He does not

purport to show any statutory authorization for his claims. Because Appellant’s

claims cannot be saved through repleading, the trial court’s denial of the Motion to

Release Information was proper. Moreover, the trial court’s denial of the Motion to

Release Information is consistent with Texas jurisprudence holding that the

purpose of sovereign immunity is to preserve governmental resources. See IT–

Davy, 74 S.W.3d at 854 (noting that “[s]ubjecting the government to liability may

hamper governmental functions by shifting tax resources away from their intended

purposes toward defending lawsuits and paying judgments”).

                                     PRAYER

      Appellees Bandera County Sheriff’s Department; Daniel R. Butts, Sheriff;

J.J. Martinez, Deputy; Deputy John Joe #1; Deputy John Doe #2; and Deputy John

Doe #3, Individually, Jointly, Severally and In Their Official Capacity pray that

this Court affirm the final judgment of the trial court dismissing all of Appellant’s

claims for lack for jurisdiction.


                                         15
                                      Respectfully submitted,

                                      MCGINNIS LOCHRIDGE, LLP
                                      600 Congress Avenue, Suite 2100
                                      Austin, Texas 78701
                                      512.495.6000 (telephone)
                                      512.505.6364 (telecopier)

                                      By:    /s/ Eric A. Johnston
                                             MICHAEL SHAUNESSY
                                             State Bar No. 18134550
                                             mshaunessy@mcginnislaw.com
                                             ERIC A. JOHNSTON
                                             State Bar No. 24070009
                                             ejohnston@mcginnislaw.com

                                      Attorneys for Appellees

                         CERTIFICATE OF SERVICE

       I hereby certify that, on the 18th day of March, 2015, I electronically filed
the foregoing with the Clerk of the Court using the Texas Online eFiling for courts
system and provided a copy, via certified mail, return receipt requested, to the
following:

      John M. Donohue, Pro Se
      TDCJ #1895073
      Duncan Unit
      1502 South 1st Street
      Diboll, Texas 75941

                                      /s/ Eric A. Johnston
                                      Michael Shaunessy
                                      Eric A. Johnston




                                        16
                     CERTIFICATE OF COMPLIANCE

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this brief

contains 3,643 words, excluding the portions of the brief exempted by Rule

9.4(i)(l).

                                     /s/ Michael Shaunessy
                                     Michael Shaunessy
                                     Eric Johnston




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