                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                        Nos. 07-16-00270-CV and 07-18-00274-CV


                           ALBERT V. JESSEP, APPELLANT

                                           V.

DEBBIE OTTOSON, IN HER OFFICIAL AND INDIVIDUAL CAPACITY AS FORMER
OR PRESENT EMPLOYEE OF THE POTTER COUNTY COMMUNITY SUPERVISION
AND CORRECTIONS DEPARTMENT; AND TERRY EASTERLING, IN HIS OFFICIAL
    AND INDIVIDUAL CAPACITY AS DIRECTOR OF THE POTTER COUNTY
 COMMUNITY SUPERVISION AND CORRECTIONS DEPARTMENT, APPELLEES

                           On Appeal from the 47th District Court
                                   Potter County, Texas
              Trial Court No. 104609-A, Honorable Edward Lee Self, Presiding

                                     July 24, 2018

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Albert V. Jessep for several years has sought relief from what he

contends is an erroneous sex offender risk assessment assigned him in 2006 by the

Potter County Community Supervision and Corrections Department. In this current suit,

appearing pro se, he sued Department employees, appellees Debbie Ottoson and Terry

Easterling, for money damages in tort, declaratory relief, and redetermination of his sex
offender risk calculation.1 The 2006 determination was allegedly made by Ottoson while

she and Easterling were employed with the Department. The trial court partially sustained

Ottoson and Easterling’s plea to the jurisdiction based on governmental immunity and

granted their motion for summary judgment. We will sever, reverse and remand Jessep’s

request for recalculation of his sex offender risk level. Otherwise, we will affirm the

judgment of the trial court.


                                       Background


       Jessep’s computer was seized by peace officers while it was being repaired at an

Amarillo computer shop. The computer’s hard drive contained pornographic images

involving children. By two July 2005 indictments filed in the 47th District Court of Potter

County, he was charged with two possession-of-child-pornography offenses. In April

2006, Jessep plead guilty to each offense. The trial court deferred adjudication of guilt

and placed him on community supervision for a period of five years. A condition of

community supervision required that Jessep register as a sex offender.2 He was assigned

a “level two” or “moderate” sex offender risk level.3 According to Jessep, he was released

from community supervision in April 2011.4



       1Jessep’s original petition also named Potter County but by amended petition he
nonsuited the county.
       2   See TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (West 2018).
       3 See TEX. CODE CRIM. PROC. ANN. art. 62.007(c)(2) and 62.053(c) (West 2018)
(court pronouncing sentence shall determine numeric risk level using screening tool under
article 62.007).
       4
       This statement of facts is taken from our opinion in Jessep v. Potter County Cmty.
Supervision & Corr. Dep’t, No. 07-13-00266-CV, 2015 Tex. App. LEXIS 6349, at *2 (Tex.
App.—Amarillo Jun. 23, 2015, no pet.) (mem. op.).

                                             2
                                          Analysis


       Through three issues, which we will discuss jointly, Jessep challenges the trial

court’s judgment.


Defendants’ Capacities


       Jessep’s trial court pleadings contain statements that his claims are brought

against Ottoson and Easterling in their official and individual capacities. The gist of

Jessep’s complaint against Ottoson is that as a community supervision officer she

assigned him an incorrect numeric risk level by using the wrong sex offender screening

tool and then published the allegedly erroneous risk level to the Texas Department of

Public Safety (DPS) which posts it on the worldwide web. Jessep charged Ottoson with

negligence, and also claimed defamation. Jessep’s complaints against Easterling, as

community supervision department director, concerned his alleged failure to supervise

Ottoson correctly and to formulate proper departmental policy. Jessep alleged Easterling

also defamed him.


       As appellees’ plea to the jurisdiction pointed out, all of Ottoson’s alleged actions

were taken in connection with her duties as a community supervision employee. We think

it is undisputed that the same is true for the conduct Jessep’s pleadings attribute to

Easterling. Considering the substance of his pleadings, and despite his references to the

defendants’ individual capacities,5 we find that all Jessep’s claims alleged against Ottoson

and Easterling are brought against them in their official capacities.



       5 In his brief in this Court, Jessep explains that he sued the two in their individual
capacities because he claims some of their actions were ultra vires. But in Texas, ultra

                                             3
Governmental Immunity


         In their plea to the jurisdiction, Ottoson and Easterling sought dismissal of Jessep’s

entire case. The trial court sustained appellees’ plea to the jurisdiction as to claims it

found to be barred by governmental immunity.


         “Sovereign immunity and its counterpart, governmental immunity, exist to protect

the State and its political subdivisions from lawsuits and liability for money damages.”

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).

“[Governmental] immunity from suit defeats a trial court’s subject matter jurisdiction . . . .”

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). A plea

to the jurisdiction is a dilatory plea functioning to defeat a cause of action without regard

to whether the claims asserted have merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.

2000).


         Because the existence of the trial court’s jurisdiction is a question of law, we review

de novo the ruling of a trial court on a plea to the jurisdiction. Houston Mun. Emps.

Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex. 2007). A plea to the jurisdiction may

challenge the sufficiency of the facts pleaded in a petition or it may challenge the

existence of jurisdictional facts. Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785,

791 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing Miranda, 133 S.W.3d at 226-

27). Review of the trial court’s ruling on a plea to the jurisdiction begins with the live




vires suits are brought against state actors in their official capacities. See, e.g., Patel v.
Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 76 (Tex. 2015) (citing City of El
Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009)).

                                                4
pleadings. Miranda, 133 S.W.3d at 226. A plaintiff must affirmatively demonstrate the

trial court’s jurisdiction. Id.


       A suit against a government employee in his official capacity is fundamentally a

suit against his government employer and not a suit against the individual. Cloud v.

McKinney, 228 S.W.3d 326, 333 (Tex. App.—Austin 2007, no pet.). “If an individual is

sued in his official capacity, the employee may raise any defense that would be available

to his employer, including the defense of sovereign immunity.” Id. (citations omitted); see

Newman v. Bryan, No. 06-13-00063-CV, 2013 Tex. App. LEXIS 12492, at *8 (Tex. App.—

Texarkana Oct. 9, 2013, no pet.) (mem. op.) (same). See also Heinrich, 284 S.W.3d at

380 (subject to ultra vires exception, governmental immunity protects governmental

officers sued in their official capacities “to the extent that it protects their employers”).


       Jessep’s claims seeking money damages sound in tort. The Texas Tort Claims

Act provides a limited waiver of governmental immunity. See TEX. CIV. PRAC. & REM.

CODE ANN. §§ 101.021, 101.023, 101.025 (West 2011). The Tort Claims Act waives

governmental immunity in three general areas: use of publicly owned vehicles, premises

defects, and injuries arising from conditions or use of tangible personal or real property.

See Texas DOT v. Able, 35 S.W.3d 608, 611 (Tex. 2000); TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021.


       None of Jessep’s claims involve operation or use of a vehicle or equipment, a

premises defect, or the condition or use of tangible personal or real property. The

immunity of governmental units has not been waived for the money-damage claims

Jessep has asserted against the defendants. Because Ottoson and Easterling were

entitled to raise the defense of governmental immunity, we conclude the trial court did not

                                               5
err by granting their plea to the jurisdiction as to Jessep’s claims for money damages.

Our conclusion includes all Jessep’s claims for damages in tort including the allegedly

defamatory act of providing information to DPS for dissemination on the worldwide web.6

It includes also Jessep’s ultra vires claim to the extent it sought money damages. See

Heinrich, 284 S.W.3d at 373-74 (under ultra vires rule, remedy sought may implicate

immunity). It further includes Jessep’s claim for declaratory relief to the extent the

declarations sought were in aid of the recovery of money damages. See id. at 371 (“well

settled” that private parties cannot circumvent sovereign immunity by characterizing suit

for money damages as declaratory-judgment claim) (internal citation and quotation

omitted).7


       In the face of a plea to the jurisdiction, a plaintiff deserves “a reasonable

opportunity to amend unless the pleadings affirmatively negate the existence of

jurisdiction.” Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007)

(citation omitted). In this case, it would be futile for Jessep to replead his claims for money

damages because they are incurably jurisdictionally defective. See id. at 846.8




       6As to Jessep’s claims for damages for defamation, we note also that the Tort
Claims Act does not waive immunity for claims arising out of intentional torts. TEX. CIV.
PRAC. & REM. CODE ANN. § 101.057 (West 2011).
       7 The trial court granted appellees’ motion for summary judgment on a limitations
ground. Because we have concluded that appellees are immune from suit for damages
for the tortious conduct Jessep alleged, we need not consider whether Jessep’s claims
of damages caused by the allegedly tortious conduct of appellees are barred by the
statute of limitations. See TEX. R. APP. P. 47.1.
       8 The statutory provisions for sex offender risk assessments contain their own grant
of immunity from liability for “good faith conduct,” applicable to employees and officers of
a community supervision and corrections department. See TEX. CODE CRIM. PROC. ANN.
art. 62.008 (West 2018). That provision is not involved in this appeal.

                                              6
Claim for Correction of Risk Assessment


       In his supplemental response to appellees’ motion for summary judgment and plea

to the jurisdiction, Jessep made clear that his claims for damages were ancillary to his

effort to have the court correct his sex offender risk level. Jessep’s focus, and that of

appellees, in the trial court and here on appeal in this suit has been his claims for

damages and related declaratory relief. His request for reduction of his risk assessment

level was relegated to one sentence in the prayer of his petition9 where it was dismissed

by the trial court under the plea to the jurisdiction.


       On the record presented, we are unable to see a jurisdictional bar to the authority

of the 47th District Court to consider a request to override the risk level the Department

assigned Jessep. See TEX. CODE CRIM. PROC. ANN. art. 62.007(d). Accordingly, we

conclude the trial court erred by dismissing his claim for that relief on jurisdictional

grounds.


       The trial court also granted the defendants’ motion for summary judgment on his

request for declaratory relief, and ordered that Jessep take nothing on his claims for

declaratory judgment. We have found that action was proper as to such claims aimed at

a money judgment. To the extent, however, that the trial court granted summary judgment

on requests for declaratory relief necessary to accomplish adjudication of his plea for

correction of his risk assessment level, it erred.




       9“WHEREFORE Plaintiff prays that this honorable court: . . . Issue an order for
permanent and the total removal of illegally placed risk assessment notation appearing
on Plaintiff’s sex offender record.”

                                               7
                                        Conclusion


         We sever Jessep’s request to have his assigned risk-level overridden, and any

related requests for declaratory relief, into case number 07-18-00274-CV. We reverse

the trial court’s judgment dismissing those claims and remand case number 07-18-00274-

CV to the trial court for further proceedings. Otherwise, we affirm the judgment of the trial

court.


                                                         James T. Campbell
                                                            Justice




                                             8
