                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit                    May 17, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 06-10654




          MARILYN SHIRLEY and RAYMOND DOUGLAS SHIRLEY,

                                                Plaintiff-Appellant,


                             VERSUS


                    UNITED STATES OF AMERICA,


                                                Defendant-Appellee.



          Appeal from the United States District Court
               For the Northern District of Texas
                          4:03-CV-1385



Before KING, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Appellant-Plaintiff Marilyn Shirley (“Shirley”) appeals the

district court’s order granting summary judgment in favor of the

Defendant-Appellee the United States of America on her claims

brought under the Federal Tort Claims Act (“FTCA”).           For the



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                               -1-
reasons that follow, we AFFIRM.

     In January 1998, Plaintiff Marilyn Shirley (“Shirley”) entered

the federal prison at Federal Medical Center Carswell (“FMCC”), a

relaxed supervision facility located in Fort Worth, Texas, to begin

serving a 37-month sentence on a drug conviction.           On March 11,

2000, Officer Michael Lawrence Miller, a correctional officer at

FMCC, sexually assaulted Shirley.

     In November 2003, after successfully pursuing a civil action

against Miller, Shirley sued the United States under 28 U.S.C. §

1346(b) of the FTCA.       She asserted claims under the theory of

respondeat     superior   for   intentional   infliction    of   emotional

distress, battery, assault, false imprisonment, negligence per se,

and negligence.    The government moved for summary judgment on all

of Shirley’s claims, arguing that the FTCA’s waiver of sovereign

immunity did not apply because Miller was not acting within the

scope of his employment during the sexual assault.          The district

court agreed and granted the government’s motion.          Shirley lodges

this appeal.

     As the sovereign, the United States is immune from suit

unless, and only to the extent that, it has consented to be sued.1

Through the enactment of the FTCA, the government has generally

waived its sovereign immunity from tort liability for the negligent

or wrongful acts or omissions of its agents and employees who act


     1
      FDIC v. Meyers, 510 U.S. 471, 475-76 (1994).

                                    -2-
within the scope of their employment “under circumstances where the

United States, if a private person, would be liable to the claimant

in accordance with the law of the place where the act or omission

occurred.”2    Under Texas law, an employee acts within the scope of

his employment if his actions are: (1) within the general authority

given him; (2) in furtherance of the employer’s business; and (3)

for the accomplishment of the object for which the employee was

employed.3    The district court concluded that Miller’s actions were

not within the scope of employment because the sexual assault did

not advance the United States’s work, as required by prongs (2) and

(3), and instead constituted a wholly personal action.4

     On appeal, Shirley argues that while the district court

correctly articulated the general test for scope of employment in

Texas, it failed to recognize and apply other Texas cases which

have extended vicarious liability to an employer for an employee’s

actions despite a failure to fulfill all three prongs of the above

test.    Shirley specifically seeks to avoid prongs (2) and (3),

which require some business purpose be attributable to the acts

     2
      28 U.S.C. § 1346(b)(1); Garcia v. United States, 62 F.3d
126, 127 (5th Cir. 1995) (en banc).
     3
      Ross v. Marshall, 426 F.3d 745, 763-64 (5th Cir. 2005)
(citing numerous Texas cases).
     4
      See Mackey v. U.P. Enters. Inc., 935 S.W.2d 446, 453 (Tex.
App.–Tyler 1996, no writ) (explaining that, under Texas law,
where an employee turns away from the advancement of the
employer’s work to engage in wholly personal actions, he ceases
to act for the employer, and the responsibility for those
personal actions is upon him alone).

                                  -3-
surrounding or leading to the wrongful conduct. However, the cases

discussed by Shirley fail to support this argument because they

involved instances where the employee’s act was closely related to

a legitimate employment goal or duty.5     Shirley fails to allege

that a similar legitimate employment interest animated Miller’s

sexual assault in the instant case.

     We   similarly   reject   Shirley’s     arguments   based    on

foreseeability and apparent authority.     None of the cases relied

upon are sufficiently analogous nor do they serve to excuse a

plaintiff in this context from making a showing that an employee’s

wrongful act grew out of a legitimate employment duty or goal.6

     Finally, we reject Shirley’s argument that the government’s

successful criminal prosecution of Miller for abuse of a ward

serves to estop the government from arguing that Miller was acting


     5
      See Gulf, C. & S.F. Ry. Co. v. Cobb, 45 S.W.2d 323, 326
(Tex.Civ.App.–Austin 1931, writ dism’d w.o.j.) (employee's act
would be imputed to the employer where the employee was acting to
prevent his victim from interfering with the performance of the
employee's assigned duties); Houston Transit Co. v. Felder, 208
S.W.2d 880, 882 (Tex. 1948) (evidence raised a jury issue as to
the company's liability for an assault by its employee where
employee testified that his purpose in approaching motorist was
to secure information for his employer).
     6
      Shirley relies on the following cases: Hooper v. Pitney
Bowes, Inc., 895 S.W.2d 773, 777 (Tex.App.–Texarkana 1995, no
writ) (explaining that the actions of an employee who is deemed
to have acted within the scope of his employment are generally
imputed to the employer but that an exception applies where the
acts are unforeseeable); Borg-Warner Protective Services Corp. v.
Flores, 955 S.W.2d 861 (Tex.App.–Corpus Christi 1997, no writ)
(finding that supervisor’s rape of a female subordinate would
establish a constructive discharge).

                               -4-
outside the scope of his employment during the sexual assault.   A

conviction under 18 U.S.C. § 2243(b) does not establish scope of

employment under Texas law.

AFFIRMED.




                               -5-
