Sovereign immunity bars declaratory and injunctive relief says 1st Court of Appeals


Board of Trustees of Galveston Wharves v O’Rourke, NO. 01-10-01115-CV (Tex. App. Houston [1st Dist.] May 30, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction arising out of claims for invasion of privacy, civil conspiracy, and seeking declaratory and injunctive relief.  The crux of this opinion focused on the declaratory and injunctive relief applying the Heinrich standards.

O’Rourke is the president of the local International Longshormen’s Association and has a history of altercations with the Port of Galveston Police Department. After returning to his car parked in terminal 1 at the Wharves he discovered a parking ticket and immediately confronted the issuing officer who was still nearby. O’Rourke alleges that after he tried to leave the officer grabbed him around the neck and tried to push him against a parked bus. At a hearing before the Wharves, the PD called a Port employee who witnessed the altercation and implicated O’Rourke as the aggressor. O’Rourke alleges the PD then began an illegal surveillance operation against him by programming security cameras to secretly record him at the Port by tagging his license plate in the computer and tracking him. O’Rourke filed suit claiming damages and seeking declaratory and injunctive relief to prevent these “illegal” activities.

Based on Tex. Civ. Prac. & Rem. Code §101.106 the individuals were dismissed from O’Rourke’s suit, but the trial court denied the Wharves plea to the jurisdiction.  The Wharves appealed and first allege O’Rourke did not provide pre-suit notice under §101.101 of the Texas Tort Claims Act. Further, O’Rourke’s allegations were intentional torts barred by sovereign immunity and the court did not have jurisdiction over the declaratory and injunctive requests as they merely recast his tort claims.  O’Rourke abandoned his intentional tort claims against the Wharves on appeal which also mooted the challenge to the absence of pre-suit clearance.

Pursuant to City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), a governmental entity retains immunity for ultra vires acts and the individuals are the only proper parties to such claims.  Further, the injunctive relief requested (i.e. to discipline officers) are discretionary acts precluding injunctive relief and the declaratory relief to prevent arrests and investigations against O’Rourke are attempts to control governmental actions which are likewise prohibited. The remaining declaratory relief concerning falsification of evidence and testimony presented no live controversy as any such declaration will have no practical effect on any matter before the court since the tort claims are resolved.  Finally, O’Rourke did not demonstrate a liberty or property interest at issue in order to bring a due-course-of-law claim.  The Wharves’ plea to the jurisdiction should have been granted. The court reversed and rendered dismissing all claims for lack of jurisdiction.

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