                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-19-00061-CV
                               __________________

                         LAYNE WALKER, Appellant

                                         V.

                   STEPHEN HARTMAN, Appellee
__________________________________________________________________

                On Appeal from the 58th District Court
                       Jefferson County, Texas
                      Trial Cause No. A-198,246
__________________________________________________________________

                          MEMORANDUM OPINION

      In an accelerated appeal, Layne Walker challenges the trial court’s denial of

his plea to the jurisdiction. This appeal arises from a lawsuit filed by Stephen

Hartman against Walker and others for claims stemming from Hartman’s 2013 arrest

in Walker’s courtroom. In one issue on appeal, Walker asserts that the trial court

erred when it denied his plea to the jurisdiction because he is entitled to sovereign

immunity, and Hartman’s claims for malicious prosecution and civil conspiracy are


                                         1
barred by the Texas Tort Claims Act (TTCA) election of remedies. 1, 2 See Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(a)–(f). For the reasons explained below, we

affirm.

                              I. Factual Background

      In this case’s first journey to the Court of Appeals, the factual details were

explained extensively in our prior opinion. See Walker v. Hartman, 516 S.W.3d 71,

75–77 (Tex. App.—Beaumont 2017, pet. denied) (Walker I). As such, we adopt the

background facts as stated in Walker I. See id. On May 28, 2013, Hartman, a licensed

investigator and licensed process server employed by Klein Investigations and

Consulting, entered the 252nd District Courtroom while Walker, the former judge

of said court, was presiding. Hartman pleaded that he approached the bar in the

courtroom, but did not cross it, and after motioning for the bailiff, Deputy Lewis, to

come toward him, he whispered to Lewis that he needed to serve Walker with a

summons. According to Hartman, Lewis walked to Deputy Broussard, and

Broussard “rushed toward Hartman and immediately began pushing Hartman to the



      1
         Walker initially challenged the trial court’s denial of his motion for summary
judgment based on res judicata and collateral estoppel but has since withdrawn that
issue.
       2
         While Walker presents the argument that section 101.106(a) and (f) of the
TTCA bars the claims against him in conjunction with his sovereign immunity issue,
we address that claim as a separate issue.
                                            2
exit door, stating Hartman needed to ‘leave or go under arrest.’” According to

Hartman’s petition, he did not attempt to serve Walker in court.

      Hartman pleaded that although he identified himself as a licensed process

server and did nothing disruptive, Deputies Lewis and Broussard, as well as Deputy

Barker, placed Hartman under arrest and confiscated his personal property, which

included, among other things, his iPhone and a video recording pen that had captured

the events. Hartman also pleaded that the officers used excessive force during his

arrest and detained him for an excessively long period. Hartman alleged that Walker

knew in advance Hartman intended to serve him and that Walker had instructed

Deputies Lewis, Broussard, and Barker to arrest Hartman when Hartman stated his

intention to serve the summons.

      According to Hartman’s petition, the three deputies subsequently allowed him

to serve the summons on Walker in the jury room. Hartman pleaded that he was told

he would be charged with interfering with public duties and disrupting a public

meeting, and he alleged that Deputies Broussard, Barker, and Lewis falsified

probable cause affidavits to support those charges. In addition, Hartman alleged that

Walker and other defendants, working together, replaced Hartman’s recording pen

with a pocket screwdriver “as part of their scheme to hide Hartman’s recording pen

and its evidence[.]” Hartman also alleged that Walker’s court coordinator

                                         3
“maliciously sought to revoke Hartman’s professional licenses[]” by filing formal

complaints with the Texas Department of Public Safety Private Security Bureau, the

Texas Process Server Review Board, and the Texas Association of Licensed

Investigators (a trade association). As a result of the complaints being filed,

Hartman’s licenses as a private investigator, personal protection officer, and

commissioned security guard were suspended for approximately three months until

his criminal case was dismissed.

      Hartman also pleaded that “Walker, with the participation by overt acts of all

other Defendants, prosecuted a malicious, illegal criminal case against Hartman[.]”

Hartman alleged that Walker and other defendants illegally purported to, or

pretended to, “hire[] Joe Alford to serve as a District Attorney Pro Tem (DAPT),

and arranged for illegal payment of Joe Alford out of the Texas Indigent Defense

Fund (IDF).”

      According to Hartman, Walker instructed Broussard to take Hartman’s

recording pen home, where Broussard downloaded it onto a CD and attempted to

delete the pen’s contents. According to Hartman, Walker and other defendants

instructed the persons present in the courtroom during the incident “to provide

perjured affidavits and one false witness statement[] to support Hartman’s arrest and

prosecution[]” and instructed sheriff’s deputies to prepare falsified arrest reports and

                                           4
probable cause affidavits. Hartman’s petition alleged that the recording pen

contained evidence proving that the probable cause arrest affidavits and reports, as

well as the affidavits of witnesses, were “perjured and materially false[.]” Hartman

further alleged that the defendants who participated in a “pattern of denials and

obfuscations about the existence of the recording pen and its evidence” acted on the

personal orders of Walker and other defendants.

                              II. Procedural History

      Hartman filed a federal lawsuit against Walker individually, The State of

Texas, Jefferson County, the courtroom bailiffs, sheriff’s department employees,

and individuals who witnessed Hartman’s arrest and signed affidavits about his

arrest, seeking damages and remedies for violations of 42 U.S.C. § 1983, and against

Walker and his court coordinator for tortious interference with business

relationships, defamation, invasion of privacy and intentional infliction of emotional

distress. In his second amended federal complaint, Hartman effectively nonsuited

the State of Texas by eliminating any allegations against the State while alleging

additional state tort claims against Jefferson County, Walker, and other named

defendants in their individual capacity. 3 Walker’s federal lawsuit was ultimately



      3
       There is no record showing the State of Texas ever answered or made an
appearance in the federal lawsuit before it was nonsuited.
                                          5
dismissed. Hartman then filed this suit in state court alleging Texas tort claims

against Walker, the bailiffs, sheriff’s department employees, Walker’s courtroom

staff, and the individuals who signed the affidavits.

      In his first response to Hartman’s pleadings, Walker requested the trial court

dismiss Hartman’s claims under the Texas Citizens Participation Act (TCPA). See

generally Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011. Subsequently, Walker

amended his response and filed a Rule 91a motion to dismiss based on collateral

estoppel, res judicata and judicial immunity, quasi-judicial immunity, and sovereign

immunity. See Tex. R. Civ. P. 91a. After a hearing on Walker’s Rule 91a motion,

the trial court granted Walker’s request in part and denied it in part. Specifically, the

trial court held that “the motion is granted with respect to conduct of Walker in the

courtroom (the arrest) but DENIED with respect to the conduct that occurred

subsequently.” Walker appealed to this Court, and we affirmed the trial court’s

ruling. See Walker I, 516 S.W.3d at 84.

      In 2018, Walker filed another motion to dismiss for lack of subject matter

jurisdiction based on the defense of sovereign immunity. In his motion, Walker

argued that “[a] government employee has sovereign or governmental immunity

when he acts as a representative of the government.” Walker argued that the TTCA

election of remedies sections 101.106(a) and (f) required the dismissal of the claims

                                           6
against him. Walker contended that the TTCA election of remedies provision of

section 101.106(a) barred Hartman’s claims because Hartman elected to sue the

State of Texas and Jefferson County in federal court, barring any litigation against

Walker individually. In addition, Walker argued that Hartman’s claims should be

barred because the acts of Walker made the basis of Hartman’s claims were

performed in his official capacity and in the course and scope of his employment as

provided under section 101.106(f). After a hearing, the trial court denied Walker’s

motion to dismiss for lack of subject matter jurisdiction based on sovereign

immunity. Walker timely appealed.

                             III.   Standard of Review

      Section 51.014 of the Texas Civil Practice and Remedies Code gives us

jurisdiction over this interlocutory appeal of the trial court’s denial of a plea to the

jurisdiction. See Tex. Civ. Prac & Rem. Code Ann. § 51.014(a)(5), (8); see also

Lenoir v. Marino, 469 S.W.3d 669, 673 n.2 (Tex. App.—Houston [1st Dist.] 2015)

(op. on reh’g), aff’d, 526 S.W.3d 403 (Tex. 2017). “A plea questioning the trial

court’s jurisdiction raises a question of law that we review de novo.” State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007) (citing Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); see also Menefee v. Medlen, 319

S.W.3d 868, 871 n.1 (Tex. App.—Fort Worth 2010, no pet.) (citing Tex. Civ. Prac.

                                           7
& Rem. Code Ann. §§ 51.014, 101.106)) (recognizing an appellate court’s

jurisdiction pursuant to section 51.014(a)(5) of the Civil Practice and Remedies

Code over trial court rulings on governmental immunity under section 101.106 of

the TTCA), disapproved of on other grounds, Franka v. Velasquez, 332 S.W.3d 367,

382 n.67 (Tex. 2011).

                             IV.    Sovereign Immunity

A. Analysis

      In his first issue, Walker argues that the trial court erred when it denied his

motion to dismiss based on sovereign immunity because “Hartman’s own judicial

admissions establish Walker’s sovereign immunity from suit as an employee of the

[S]tate of Texas or one of its political subdivisions” and “[t]he trial court should have

. . . dismissed Hartman’s claims for want of jurisdiction[.]”

      “In Texas, sovereign immunity deprives a trial court of subject matter

jurisdiction for lawsuits in which the state or certain governmental units have been

sued unless the state consents to suit.” Miranda, 133 S.W.3d at 224 (citations

omitted). Sovereign immunity involves both immunity from suit and from liability.

Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006). “Immunity

from liability is an affirmative defense that bars enforcement of a judgment against

a governmental entity, while immunity from suit bars suit against the entity

                                           8
altogether and may be raised in a plea to the jurisdiction.” Brown & Gay Eng’g, Inc.

v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015) (citations omitted).

       Although Walker asserts in his brief that he is entitled to sovereign immunity,

that term is often used interchangeably with governmental immunity when, in

reality, they are two distinct concepts. In the context Walker raised the defense in

his answer, we will review Walker’s claim of sovereign immunity as a claim for

governmental immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,

694 n.3 (Tex. 2003) (citations omitted)

      An individual employee may be entitled to governmental immunity if he is

sued in his official capacity. Nueces Cty. v. Ferguson, 97 S.W.3d 205, 214 (Tex.

App.—Corpus Christi 2002, no pet.). “Persons sued in their official capacity may

raise any defense available to the governmental unit, including sovereign immunity”

although this immunity does not apply to a person sued in their individual capacity

and “[p]ersons sued in their individual capacities, . . . may not rely on sovereign

immunity protections for claims against them in that capacity, although they may

assert the defense of official immunity.” Id. at 215 (citations omitted). “[P]ersons

sued in both official and individual capacities may assert both official and sovereign

immunity, although they enjoy sovereign immunity protection only to the extent that

they were acting in their official capacity.” Id.

                                           9
      1. Official Capacity or Individual Capacity

      We begin our analysis with a determination of whether Walker was sued in

his official capacity or individual capacity to determine if he is entitled to claim

governmental immunity. Regardless of what the movant states, to make this

determination, we review the plaintiff’s pleading and perform a “course of

proceedings” review and “ascertain the true nature of the plaintiff’s claims[.]” Ross

v. Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 743 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). In the trial court, Hartman asserted two

claims against Walker, one alleging malicious prosecution and the other based on an

alleged civil conspiracy. In his 5th amended petition, Hartman pleaded that after he

was arrested in Walker’s courtroom, Walker, along with several other defendants,

orchestrated a conspiracy to have him illegally prosecuted for his actions. He argues

Walker’s actions were not within his official capacity as judge. Walker, on the other

hand, asserts he acted within his official capacity, stating that “[a] judge[] presiding

over his courtroom, suppressing disruption of proceedings, and even securing a

criminal prosecution against the person who disrupted proceedings is part of a

judge’s job.” As we determined in Walker I, Hartman’s claims for malicious

prosecution and civil conspiracy, as pleaded, were based on acts that occurred after

                                          10
Hartman was removed from Walker’s courtroom. See 516 S.W.3d at 83–84.

Generally, Hartman’s allegations focus on Walker’s actions after he left the bench,

and given the facts he pleaded, the pleadings alleged acts that fall outside the general

scope of duties of a district judge. Id. And Hartman pleaded facts alleging Walker

committed acts that were outside the duties Walker had as a district judge in his

official capacity. Id. Therefore, we conclude Hartman did not sue Walker in his

official capacity; consequently, governmental immunity does not protect Walker

from suit assuming the facts Hartman alleged are true.

      2. Official Immunity

      A person sued in an individual capacity may still be entitled to official

immunity, even though governmental immunity does not apply. Franka, 332 S.W.3d

at 382–83. If a person is sued in their individual capacity, they may be held

personally liable for their own torts to the extent the employee is not entitled to

official immunity. Tex. Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 357

(Tex. 2013). “Official immunity . . . is an affirmative defense protecting public

officials from individual liability.” City of El Paso v. Heinrich, 284 S.W.3d 366, 380

(Tex. 2009). “[U]nlike sovereign immunity from suit, which . . . may be raised in a

plea to the jurisdiction, official immunity is an affirmative defense that must be pled



                                          11
and proved by the party asserting it.” Brown, 461 S.W.3d at 128 (citing City of

Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)).

      Our review of Walker’s live pleading does not show he asserted the defense

of official immunity in the court below. Instead, Walker alleged he has the same

immunity as that enjoyed by the government. That allegation did not raise an

affirmative defense based on a claim of official immunity. See id. at 128–29 (stating

that because the appellant never asserted official immunity but asserted “the same

immunity [as] the government” the elements of that defense are not “satisfied[,]”

and they are not entitled to that defense.). Because Walker did not plead a claim

alleging official immunity, we do not reach his official immunity arguments in our

review. See Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 482 n.5 (Tex. 2018)

(explaining that because the appellant did not file a motion for summary judgment

based on official immunity in his individual capacity, any claims against him in his

individual capacity “remain[] pending before the trial court.”). We overrule

Walker’s first issue.

                        V. TTCA – Election of Remedies

A. Analysis

      In his second issue, Walker argues that the trial court erred when it denied his

plea to the jurisdiction and that he is entitled to a ruling dismissing Hartman’s suit

                                         12
based on the TTCA election of remedies provision in section 101.106. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(a)–(f). Walker contends that when Hartman filed

his federal lawsuit suing Jefferson County and the State of Texas, the election he

made suing them was irrevocable. Walker concludes that under the TTCA, Hartman

is barred from litigating claims arising from the same subject matter of the suit he

filed against those entities in federal court against him individually.

      The TTCA contains an election of remedies provision forcing plaintiffs at the

outset of their suits, to determine whether to sue governmental employees in their

individual capacity or to sue the governmental entity. See id.; see also Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). The TTCA

provides that once the plaintiff elects by filing suit, the TTCA “immediately and

forever” bars the plaintiff from suing others in the same capacity. Molina v.

Alvarado, 463 S.W.3d 867, 870 (Tex. 2015) (citing Tex. Civ. Prac. & Rem. Code

Ann. § 101.106(a)–(b)). The Texas Supreme Court explained how the election of

remedies provision works in 2018, stating:

      This [election of remedies] provision was incorporated into the TTCA
      to prevent plaintiffs from circumventing the TTCA’s damages cap by
      suing government employees, who were, at that time, not protected. It
      was expanded in 2003, as part of a comprehensive effort to reform the
      tort system, with the apparent purpose of forcing a plaintiff “to decide
      at the outset whether an employee acted independently and is thus
      solely liable, or acted within the general scope of his or her
      employment, such that the governmental unit is vicariously liable.”
                                        13
Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 846 (Tex. 2018) (citations

omitted). The Texas Supreme Court has warned litigants to “proceed cautiously”

before initiating suit under the TTCA because the election has “irrevocable

consequences.” Garcia, 253 S.W.3d at 657.

        Generally, Texas Rule of Civil Procedure 65 provides that any subsequent

amended pleadings supersede the original filing, but we must defer to the statute if

it contradicts the language in a rule. Univ. of Tex. Health Sci. Ctr. of Hous. v. Rios,

542 S.W.3d 530, 538 (Tex. 2017); see also Tex. R. Civ. P. 65. In 2017, the Texas

Supreme Court held that under the TTCA, any subsequent pleadings cannot avoid

the plaintiff’s irrevocable election to sue the governmental entity employer. See id.

at 538–39; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a). According to

Walker, the trial court erred when it rejected his election of remedies argument,

which he based on section 101.106(a) of the TTCA. We begin our analysis of

Walker’s argument by determining whether section 101.106(a) applies to Hartman’s

suit.

        1. 101.106(a) – Individual Capacity

        Section 101.106(a) of the TTCA provides that “[t]he filing of a suit under this

chapter against a governmental unit constitutes an irrevocable election by the

plaintiff and immediately and forever bars any suit or recovery by the plaintiff
                                      14
against any individual employee of the governmental unit regarding the same subject

matter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a). The statute specifically

states that an election occurs when the government employer is sued and bars

recovery against an individual employee of the governmental unit. See id. (emphasis

added). Our sister court in Houston explained that

      [s]ection 101.106(a) refers to “[t]he filing of a suit under this chapter
      against a governmental unit;” it does not refer to the numerical
      designation in the caption of the pleading by which a plaintiff has filed
      suit against a governmental unit. The dispositive election occurs when
      the governmental employer is sued—regardless of whether the
      governmental employer is sued alone or in tandem with the employee,
      and regardless of whether the governmental employer is sued in the
      “original” petition or an “amended” petition.

Hintz v. Lally, 305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied).4 “[S]ubsection (a) bars suit against an employee in his individual capacity.”

Stinson v. Fontenot, 435 S.W.3d 793, 794 (Tex. 2014) (citation omitted). “[U]nder

subsection (a), suit against a governmental unit under the TTCA—i.e., filing a tort

claim against the governmental unit—bars suit against an ‘individual employee’ of

the unit regarding the same subject matter, regardless of whether immunity has been



      4
         In his brief, Hartman argues Hintz supports his argument claiming the
TTCA’s election of remedies applies only to the first petition and not to the contents
of amended petitions. We are unpersuaded by his argument: it contradicts Hintz. See
Hintz v. Lally, 305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied).
                                       15
waived.” Ngakoue, 408 S.W.3d at 357 n.7 (citations omitted). It is well settled that

“[t]he plain language of the election-of-remedies provision, then, demonstrates that

a suit against the government triggers subsection (a)” and will bar a suit against an

employee in his individual, rather than official, capacity. Alexander v. Walker, 435

S.W.3d 789, 791 (Tex. 2014).

       Hartman filed an original petition in federal court suing Walker, the State of

Texas, and Jefferson County. As a district judge, Walker is employed by the State

of Texas, not Jefferson County. See Bloom v. Bexar Cty., Tex., 130 F.3d 722, 725

(5th Cir. 1997) (citing Tex. Const. art. V, § 7) (“[S]tate judges are elected officials

of the State of Texas and are not agents, officials, or employees of the county.”). It

is undisputed that Hartman dismissed the State of Texas when he subsequently

amended his federal complaint.

      That said, the original complaint Hartman filed in federal court included an

action against Walker and the State of Texas based on section 1983 of the Federal

Civil Rights Act. See 42 U.S.C. § 1983. Section 1983 provides a separate and distinct

legal basis from the Tort Claims Act for challenging the actions of a governmental

employee. See Thomas v. Allen, 837 S.W.2d 631, 632–33 (Tex. 1992); Brand v.

Savage, 920 S.W.2d 672, 675 (Tex. App.—Houston [1st Dist.] 1995, no pet.)

(“Moreover, state and federal constitutional claims are not barred by immunity. For

                                          16
example, appellant could have circumvented the Tort Claims Act and its effects by

bringing a claim for violation of [their] constitutionally protected rights under 42

U.S.C. § 1983.”). “Section 1983 imposes liability for violations of rights protected

by the United States Constitution, not for violations of duties of care arising under

tort law.” Leo v. Trevino, 285 S.W.3d 470, 479 (Tex. App.—Corpus Christi 2006,

no pet.) (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994));

see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (explaining that section 1983

provides a “method for vindicating federal rights”). Based on Walker’s original

federal complaint, we conclude Hartman’s section 1983 claims are not claims under

the Tort Claims Act. See Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453

S.W.3d 411, 416 (Tex. 2015).

      In his second amended complaint, Hartman dropped his allegations against

the State of Texas by failing to allege any claim against them. He sued Walker and

other individuals, however, for the “intentionally tortious misconduct of each and all

of the individual Defendants.” Hartman never asserted a claim against the State of

Texas triggering the TTCA. We conclude he is not barred by the election of remedies

from suing Walker individually for claims alleging a cause of action under the

TTCA. See Tex. Civ. Prac. & Rem. Code Ann. § 106.101(a), (e) (“(a) The filing of

a suit under this chapter against a governmental unit constitutes an irrevocable

                                         17
election by the plaintiff and immediately and forever bars any suit or recovery by

the plaintiff against any individual employee of the governmental unit regarding the

same subject matter. . . . (e) If 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.” (emphasis added)).

      Stated another way, “section 101.106’s door swings in just one direction.”

Hintz, 305 S.W.3d at 769. “This one-way door comports with the legislature’s goal

to address efforts to circumvent the Tort Claims Act’s limits by litigants who sued

governmental employees individually instead of their governmental employers.” Id.

(citation omitted) (emphasis added); see also Lenoir, 469 S.W.3d at 675 (citations

omitted) (“If the plaintiff sues the governmental unit, she is forever barred from

suing the governmental unit’s employees[,]. . . [b]ut claims against governmental

employees may be pursued if they do not fall within the election of remedies

categories created by section 101.106.”). For these reasons, we overrule Walker’s

claim alleging section 101.106(a) of the TTCA applies to Hartman’s suit.

      2. 101.106(f) - Official Capacity

      Last, Walker argues the TTCA’s election of remedies provision applies and

bars Hartman’s suit under 101.106(f) because Walker, as a judicial official and in



                                          18
his official capacity, acted within the scope of his duties to “suppress[] disruption in

a courtroom and maintain[] order.”

      Section 101.106(f) of the TTCA applies when someone sues a governmental

employee in his official capacity. Garza v. Harrison, 574 S.W.3d 389, 393 (Tex.

2019). “[B]ecause an official-capacity suit against a public employee is merely

another way of pleading an action against the governmental employer, on the

employee’s motion, section 101.106(f) compels an election that makes suit against

the governmental employer the exclusive remedy for a public employee’s conduct

within the scope of employment.” Id. at 399 (citations omitted). Subsection (f)

requires dismissal of a suit against a government employee (1) if the suit is based on

“conduct within the general scope of that employee’s employment” and, (2) “if it

could have been brought under this chapter against the governmental unit[.]” Tex.

Civ. Prac. & Rem. Code Ann. § 101.106(f); see also Lenoir, 526 S.W.3d at 405.

Dismissal under section 101.106(f) is properly reviewed de novo. Garza, 574

S.W.3d at 400.

      Whether subsection (f) applies to the facts that are at issue here hinges on

whether Hartman sued Walker in his official capacity. The first step is to determine

whether the pleadings allege facts showing that Walker acted within the course and

scope of his employment as a district judge when the conduct Hartman claims

                                          19
actionable allegedly occurred. Officials act within the scope of their employment if

their acts fall within the duties they are generally assigned. Ollie v. Plano Indep. Sch.

Dist., 383 S.W.3d 783, 791 (Tex. App.—Dallas 2012, pet. denied) (citations

omitted).

      The scope-of-employment analysis, therefore, remains fundamentally
      objective: Is there a connection between the employee's job duties and
      the alleged tortious conduct? The answer may be yes even if the
      employee performs negligently or is motivated by ulterior motives or
      personal animus so long as the conduct itself was pursuant to [their] job
      responsibilities.

Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017) (citation omitted). Thus, even

if acting to serve the purpose of a third person, as long as the employee’s conduct

“falls within the duties assigned,” the conduct is within the scope of employment.

Anderson v. Bessman, 365 S.W.3d 119, 125–26 (Tex. App.—Houston [1st Dist.]

2011, no pet.) (citations omitted).

      In his original federal complaint, Hartman never disputed Walker’s claim that

he was, at all relevant times, a State employee. Hartman now argues he is suing

Walker for Walker’s actions that Hartman argues occurred outside of Walker’s

scope of employment as a judge. For instance, Hartman suggests:

      Walker’s misconduct against Mr. Hartman is totally outside the scope
      of his jurisdiction pursuant to his individual vendetta against Mr.
      Hartman and the rule of law. The destruction of evidence, the
      fabrication of evidence, the unlawful arrest and incarceration, the illegal
      search and seizure, the denial of Mr. Hartman’s right to counsel,
                                         20
      excessive force, malicious prosecution, defamation per se, acts of
      official oppression, etc., are all outside of the scope of [Walker’s]
      jurisdiction[.]

Hartman states that these actions by Walker, along with the other defendants in the

lawsuit, show they acted in a “criminal conspiracy,” that caused Hartman to be

maliciously prosecuted.

      We turn to opinions issued by courts discussing the meaning of the term

“scope of employment” to guide our resolution of whether the trial court should have

dismissed Hartman’s suit based on Walker’s claim that his actional conduct occurred

completely within his duties as a district judge. One of our sister courts has

explained:

      As defined in the TTCA, “scope of employment” means “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.” An
      official acts within the scope of his authority if he is discharging the
      duties generally assigned to him. The dispositive question is: “[I]n what
      capacity was the officer acting at the time he committed the acts for
      which the complaint was made?”

McFadden v. Olesky, 517 S.W.3d 287, 296 (Tex. App.—Austin 2017, pet. denied)

(citations omitted). Generally, an employee’s scope of employment includes conduct

the employee engages in while carrying out an assigned task even if the employee’s

conduct “escalates beyond that assigned or permitted.” Fink v. Anderson, 477

S.W.3d 460, 466 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
                                    21
      Under section 101.106(f) of the TTCA,

      the plaintiff can be compelled to switch targets from the governmental
      employee to the governmental employer if ‘suit is filed against an employee
      . . . based on conduct within the general scope of that employee’s employment
      and if it could have been brought under [the Texas Tort Claims Act] against
      the governmental unit.’

Hintz, 305 S.W.3d at 769 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f)).

And the burden to demonstrate that suit “could have been brought under this chapter”

against the governmental employer falls on the employee claiming he acted within

the scope of his employment. Id. An employee must satisfy that burden to obtain an

order dismissing the suit under section 101.106(f). Id. at 767.

      Here, Walker did not provide the trial court with any evidence to support his

First Amended Motion to Dismiss for Lack of Subject Matter Jurisdiction. In a prior

opinion, we explained that Hartman’s allegations that Walker engaged in a civil

conspiracy and prosecuted him maliciously following Hartman’s arrest, if proven

true, is conduct that could fall outside Walker’s scope of employment as a judge.

      We agree with Walker that he had every right to control order in his courtroom

and that his power to accomplish that task fell within his duties as a judge; however,

retaliatory actions Hartman alleges Walker took by allegedly joining in a civil

conspiracy, or by prosecuting Hartman maliciously, may indeed be shown to be

conduct that falls outside the duties Walker had as a judge. See Walker I, 516 S.W.3d

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at 83–84. We conclude Walker failed to carry his burden to produce evidence

showing Hartman could have brought his claims under the TTCA against the State.

See Tex. Civ. Prac. & Rem. Code. Ann. § 101.106(f); Alexander, 435 S.W.3d at 792.

      For these reasons, we overrule Walker’s issues based on sections 101.106(a)

and (f) of the TTCA.

                               VI.   Conclusion

      Having overruled all of Walker’s issues, we affirm the trial court’s order

denying Walker’s plea.

      AFFIRMED.

                                                  _________________________
                                                       CHARLES KREGER
                                                            Justice

Submitted on September 12, 2019
Opinion Delivered March 26, 2020

Before McKeithen, C.J., Kreger and Horton, JJ.




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