                                 MEMORANDUM OPINION

                                         No. 04-07-00817-CV

CITY OF EAGLE PASS, Texas, Jesus Olivares, Manuel Contreras, Ricardo Daniel and Mario
                 Diaz, in their Individual & Official Capacity,
                                   Appellants

                                                   v.

                                        Alejandro WHEELER,
                                               Appellee

                    From the 365th Judicial District Court, Maverick County, Texas
                               Trial Court No. 06-10-22053-MCVAJA
                          Honorable Amado J. Abascal, III, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 18, 2008

REVERSED AND RENDERED

           This is an accelerated interlocutory appeal from an order denying the defendants’ pleas to

the jurisdiction and motion for summary judgment, all based on immunity grounds. Because we

conclude that the City of Eagle Pass is immune from the plaintiff’s claims, and the individual
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defendants should have been dismissed from the suit, we reverse the trial court’s orders denying

the pleas to the jurisdiction and render judgment dismissing this action for want of jurisdiction.

                                     FACTUAL BACKGROUND

       In late August 2005, Appellee Alejandro Wheeler, along with a business partner, secured

approval from the City of Eagle Pass (“City”) Room Tax Committee for $5,000.00 in funds to be

used to promote an upcoming boxing match. Pursuant to this approval, Wheeler subsequently

submitted six documents to the City’s Finance Department.             Wheeler characterizes these

documents as proposals, while Appellants characterize them as invoices for payment. City

officials, including Appellants Jesus Olivares, Manuel Contreras, and Mario Diaz (collectively,

“individual Appellants”), suspected that at least one of these documents had been altered and

submitted fraudulently. They referred the matter to the City police department. Appellant

Ricardo Daniel, an Investigator with the City police department, was assigned to the case and

undertook an investigation. After conferring with the district attorney, Daniel secured an arrest

warrant and Wheeler was arrested. A district attorney pro tem presented the matter to a grand

jury, which issued an indictment charging Wheeler with a felony for allegedly passing

documents with the intent to defraud the City.

       In his defense at the criminal trial, Wheeler presented evidence that the individual

Appellants caused him to be criminally prosecuted even though they knew he submitted the

documents only as proposals and not for reimbursement. The jury acquitted Wheeler.

       Wheeler subsequently sued the City and Olivares, Contreras, Diaz, and Daniel, in both

their individual and official capacities, asserting claims for malicious prosecution and

defamation. According to Wheeler, Olivares initiated the criminal matter in retaliation for

reports Wheeler made as a journalist critical of Olivares and the City regarding public monies.




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Wheeler claims that Olivares, Contreras, and Diaz withheld information from Daniel that altered

the investigation and had a direct impact on the criminal charges. Finally, Wheeler alleges that

Daniel did not conduct the investigation in good faith. In his amended pleadings, Wheeler

dropped the tort claims against the City, but added a request for a declaration that the City

violated Wheeler’s state constitutional rights.

         The City and the individual Appellants sought relief from the trial court in three ways:

(1) the City filed a plea to the jurisdiction asserting that Wheeler improperly attempted to recast

his intentional tort claims, barred by governmental immunity, as a claim for declaratory relief,

and, therefore, the court lacked subject matter over Wheeler’s declaratory judgment action; (2)

the individual Appellants filed a plea to the jurisdiction requesting that all claims against them be

dismissed under section 101.106(e) of the Texas Civil Practice and Remedies Code; and (3) the

individual Appellants filed a motion for summary judgment based on official immunity. The

trial court denied all three of these pleadings.

                                       STANDARD OF REVIEW

         Whether a 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). Where a

plea to the jurisdiction challenges the pleadings, the appellate court determines whether the facts

alleged in the pleadings affirmatively establish the court’s jurisdiction. Id. We construe the

pleadings liberally in favor of the plaintiff, affording the opportunity to amend if defects in the

pleadings are curable. Id.; Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex.

2007).

         When a plea to the jurisdiction challenges the existence of jurisdictional facts, the parties

may submit, and the trial court may consider, evidence relevant to jurisdiction. Miranda, 133




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S.W.3d at 227. If the evidence raises a fact question regarding jurisdiction, the trial court should

not grant the plea and the fact question should be resolved by the fact-finder. Id. at 227-28.

       The standard of review “generally mirrors that of a summary judgment under Texas Rule

of Civil Procedure 166a(c).” Id. at 228. The party asserting immunity has the burden to meet

the summary judgment standard of proof to establish that the trial court lacks jurisdiction. Id.

Once the party asserting immunity presents evidence showing lack of jurisdiction, the burden

shifts to the plaintiff to demonstrate the existence of a material fact issue regarding jurisdiction.

Id. The court takes as true all evidence favorable to the non-movant, indulges every reasonable

inference and resolves any doubts in the non-movant’s favor. Id.

                                   PLEAS TO THE JURISDICTION

       Because a governmental unit is protected from suit by sovereign immunity, a party

seeking to sue a governmental unit must affirmatively demonstrate that the legislature waived

immunity for the claims brought. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). If no such waiver exists, the trial court lacks jurisdiction over the lawsuit. Tex. Natural

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

A.     Claim for Declaratory Relief Against the City

       The Uniform Declaratory Judgments Act does not extend the jurisdiction of Texas courts;

it only provides a procedure by which a trial court may “decid[e] cases already within [the]

court’s jurisdiction.” Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996), quoting State v.

Morales, 869 S.W.2d 941, 947 (Tex. 1994); TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-011

(Vernon 1997 and Supp. 2007). Thus, a declaratory judgment claim can be maintained only

where there is a justiciable controversy between the parties as to their rights and status that the




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declaration would actually resolve. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

446 (Tex. 1993).

       The Texas Supreme Court has distinguished between suits against governmental units in

which a party seeks a declaration to clarify rights under a statute or regulation, for which the

Declaratory Judgments Act provides a waiver of immunity, and suits in which the request for

declaratory relief is no more than a recasting of a claim for money damages, for which the Act

does not provide a waiver of immunity. Compare Tex. Educ. Agency v. Leeper, 893 S.W.2d 432,

446 (Tex. 1994) (court had jurisdiction where plaintiff sought declaratory judgment challenging

state agency’s construction of compulsory school-attendance law), with IT-Davy, 74 S.W.3d at

859-60 (court lacked jurisdiction where plaintiff sought declaration that state agency breached

contract, as such claim was “only . . . an attempt to have the trial court decide its breach-of-

contract claim [for which immunity was not waived]”). Even when a plaintiff’s claim for

declaratory relief is predicated on proper construction of a statute, as was the case in Leeper, the

governmental unit retains immunity where (1) the only injury occurred in the past and (2) the

only plausible or conceivable remedy is money damages. City of Houston v. Williams, 216

S.W.3d 827, 828-29 (Tex. 2007) (municipality did not waive immunity against declaratory

judgment action when only conceivable remedy was an award of money damages).

       Here, the City asserts that Wheeler’s declaratory judgment claim is simply a recasting of

his malicious prosecution and defamation claims for money damages and, therefore, the court

has no jurisdiction over those claims. The City contends that this case is very similar to De Miño

v. Sheridan, 176 S.W.3d 359, 364 (Tex. App.—Houston 2004, no pet.), wherein de Miño sued

Sheridan, the Provost of the University of Houston, for allegedly making defamatory statements

in connection with Sheridan’s decision not to renew de Miño’s teaching contract. De Miño




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asserted tort claims against Sheridan, in both his individual and official capacities, but later

amended his pleadings to clarify that he was not asserting tort claims against Sheridan in his

official capacity. Id. De Miño also requested a declaration that, in making the allegedly

defamatory statements, Sheridan violated de Miño’s state constitutional rights. Id. at 364-65.

The trial court granted Sheridan’s plea to the jurisdiction filed in his official capacity. Id. at 365.

        The court of appeals affirmed, concluding that de Miño’s claim for declaratory relief

“merely recasts his defamation claims.” Id. at 368. The court noted that the declaration de Miño

sought “would, in fact, constitute a ruling as a matter of law on the tort claims de Miño had

asserted against Sheridan in his individual capacity.” Id. at 367-68. Accordingly, de Miño’s

claim was “not within the proper scope of an action for declaratory relief,” and the Declaratory

Judgments Act did not waive Sheridan’s immunity from suit in his official capacity. Id. at 368

(citing IT-Davy, 74 S.W.3d at 855-56).

        Wheeler argues that de Miño is distinguishable because his declaratory judgment claim is

not co-extensive with his tort claims. He notes that a fact-finder could conclude that the City

violated his constitutional rights, but that the individual Appellants did not maliciously prosecute

or defame him. Conversely, the fact-finder could determine that the individual Appellants had

maliciously prosecuted or defamed Wheeler but deny his request for a declaration that the City

violated his constitutional rights. Citing Democracy Coalition v. City of Austin, 141 S.W.3d 282,

295-96 (Tex. App.—Austin 2004, no pet.), Wheeler further contends that his declaratory

judgment claim is proper because, as a member of the media, he is entitled to a judicial

declaration that the City’s conduct violated his free speech, free press, and due process rights and

that such conduct should not happen to him again in the future. 1


1
 Democracy Coalition did not turn on whether the request for declaratory relief mirrored a claim for money damages
based on the same conduct. 141 S.W.3d at 295-96. It is therefore inapposite.


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           Wheeler’s request for a declaration that, by its past actions and conduct, the City violated

his constitutional rights is based on the same allegations he makes regarding the individual

Appellants’ conduct in connection with his tort claims. Wheeler pleads one nucleus of facts

regarding the City’s and the individual Appellants’ past behavior and all of his claims depend on

those alleged facts. The declaration he seeks is that, by defaming and maliciously prosecuting

him, the City violated his rights. Thus, his request for declaratory relief merely recasts the

defamation and malicious prosecution claims he brought against the City in his original pleading,

and under these circumstances the Declaratory Judgment Act does not waive the City’s

immunity. IT-Davy, 74 S.W.3d at 855-56; De Miño, 176 S.W.3d at 367-68. 2

B.         Texas Civil Practice and Remedies Code Section 101.106(e)

           The Texas Tort Claims Act generally provides for a limited waiver of sovereign

immunity, for a narrowly proscribed set of tort claims against governmental units, and for

damage caps, in those cases where immunity is waived. TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.021, 101.023 (Vernon 2005). Before 2003, section 101.106 of the Tort Claims Act

barred any action against employees after claims against the governmental unit were reduced to a

judgment or settled. 3          Nothing in the Act, however, prevented a plaintiff from pursuing

alternative theories of liability against a governmental unit and its employees prior to judgment

or settlement.

           The Texas Supreme Court recently explained that, as part of its comprehensive tort

reform efforts in 2003, the Texas Legislature amended section 101.106 to force a plaintiff, at the



2
 See also U.S. Bank, N.A. v. Prestige Ford Garland L.P., 170 S.W.3d 272, 278 (Tex. App.—Dallas 2005, no pet.)
(affirming summary judgment on late-added declaratory judgment claim that mirrored conversion claim from earlier
petitions – plaintiff “had no need for declaratory relief on the ownership issue because [plaintiff] had already placed
that issue before the trial court in [plaintiff’s] original and first amended petitions”).
3
    Act of May 17, 1985, 69th Leg. R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3305.


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time a suit is commenced, to choose between suing a governmental unit or proceeding against

the employee alone. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e); Mission Consol. Indep.

Sch. Dist. v. Garcia, Nos. 05-0734, 05-0762, 05-0763, 2008 WL 821037, at *2-3 (Tex. March

28, 2008). The supreme court stated that

        by forcing plaintiffs to make an irrevocable election at the time suit is filed, the
        Legislature intended to reduce the delay and expense associated with allowing
        plaintiffs to plead alternatively that the governmental unit is liable because its
        employee acted within the scope of his or her authority but, if not, that the
        employee acted independently and is individually liable.

Id. at *3.

        The various subsections of section 101.106 provide the effects of the plaintiff’s election

based on the entity or person the plaintiff initiates the suit against. As the supreme court

explained in Garcia, one of the scenarios in which recovery against an individual employee is

barred, and may be sought only against the governmental unit, occurs “when suit is filed against

both the governmental unit and its employee, [section] 101.106(e).” Id. Section 101.106(e) of

the Texas Civil Practice and Remedies Code provides:

        If a suit is filed under this chapter against both a governmental unit and any of its
        employees, the employees shall be immediately dismissed on the filing of a
        motion by the governmental unit.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (emphasis added).

        Wheeler filed suit against both the City and the four individual Appellants, all of whom

were employees of the City when Wheeler’s causes of action accrued. The City, through the

individual Appellants in their official capacity, filed a plea to the jurisdiction seeking to have the

individual Appellants dismissed from the lawsuit pursuant to section 101.106(e).             Wheeler

argued that his lawsuit against the individual Appellants should not be dismissed because he did

not sue them “under this chapter,” that is, under the Tort Claims Act. Rather, his suit against the




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individual Appellants alleged intentional torts, which Wheeler claims does not implicate the Tort

Claims Act because such claims could not have been brought under the Act. Wheeler asserts

that a claim implicates section 101.106(e) only when it is one for which the Tort Claims Act

waives immunity.

       The Texas Supreme Court’s opinion in Garcia is dispositive of this issue. In Garcia, the

supreme court explained that it had never before “interpreted ‘under this chapter’ to only

encompass tort claims for which the Tort Claims Act waives immunity.” Garcia, 2008 WL

821037, at *4 (citing Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex. 1997) (pre-2003

version of section 101.106, which included “under this chapter” phrase, barred intentional tort

claim against employee after judgment was rendered against governmental unit on claim based

on same facts)); see also Liu v. City of San Antonio, 88 S.W.3d 737, 744 (Tex. App.—San

Antonio 2002, pet. denied) (pre-2003 version case cited favorably in Garcia, 2008 WL 821037,

at *4). The supreme court rejected the argument that the 2003 revisions to section 101.106

altered the meaning of “a suit . . . filed under this chapter.” Garcia, 2008 WL 821037, at *4

(“[T]here is nothing in the [current] version [of section 101.106] that would indicate a narrower

application of the phrase ‘under this chapter’ was intended [by the 2003 revisions].”)

Accordingly, when section 101.106(e) applies, an individual employee is “entitled to dismissal

of [a] suit against him upon the [governmental unit’s] filing of a motion.” Id. at *5.

       Here, Wheeler sued both the City and the individual Appellants. Thus, the individual

Appellants were “entitled to dismissal of [Wheeler’s] suit against [them] upon the [City’s] filing

of a [section 101.106(e)] motion.” Id.




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                                          CONCLUSION

       Because Wheeler’s declaratory judgment claim against the City merely recasts the

intentional tort claims from which the City retains immunity from suit, the trial court lacked

jurisdiction and erred in denying the City’s plea. Moreover, by electing to sue both the City and

the individual Appellants, Wheeler’s claims against the individual Appellants were subject to

section 101.106(e), which required the trial court to immediately dismiss the individual

Appellants from this suit upon the filing of the City’s plea to the jurisdiction. Because our

holdings as to these issues are dispositive of this appeal, we need not address the individual

Appellants’ contention that they were entitled to summary judgment based on official immunity.

See TEX. R. APP. P. 47.1 (encouraging concise opinions addressing only those issues “necessary

to final disposition of the appeal”).

       For these reasons, we reverse the judgment of the trial court and render judgment

dismissing Wheeler’s claims for lack of jurisdiction.


                                                 Rebecca Simmons, Justice




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