Suit against City employee, individually, dismissed, but ultra-vires claims remain even under Sec. 101.106 of Civil Practice and Remedies Code

Charles N. Draper v. Greg Guernsey, in his Capacity as Director of Planning and Development Watershed Protection Review Department; and City of Austin, 03-14-00265-CV (Tex. App. – Austin, February 25, 2015).

This is a land-use dispute but the opinion focuses on the dismissal of a City employee under Tex. Civ. Prac. & Rem. Code §101.106 vs ultra-vires claims.

Draper, pro se, sued the City of Austin and the Director of Planning, Guernsey, regarding property he owns but whose development is under certain restrictions pursuant to City ordinance. The City filed a motion to dismiss Guernsey under §101.106(a)(suit against entity precludes suit against employee) and (e)(suit against entity and employee means employee entitled to dismissal), which the trial court granted.

The court first noted that the pleadings are not very clear, but it appears some claims by Draper are ultra-vires claims to force the defendants to recognized some form of vested right under Chapter 245 of the Texas Local Government Code. The proper defendant to an ultra-vires claim seeking to restrain allegedly unlawful actions by the City would be Guernsey, not the City.  However, Draper also sought monetary damages exceeding $10 million asserting various improper acts by Guernsey and other City officials.   The court analyzed the interplay between subsection (a) and (e) and ultimately held 1) all claims against Guernsey, individually, were properly dismissed, 2) suit against Guernsey in his official capacity only is a suit against the City, but must be brought against Guernsey in his capacity as an official for ultra-vires purposes, and 3) the trial court’s wording that dismissed Guernsey in all respects was error.  So, Guernsey individually is let out but the ultra-vires claims remain.

If you would like to read this opinion click here. Panel: Justice Pemberton, Justice Puryear and Justice Bourland. Memorandum Opinion by Justice Pemberton. The attorney for City of Austin and Greg Guernsey is Sandra Kim. Appellant Charles Draper is pro se.

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