Officer and Police Chief entitled to dismissal under sec. 101.106(f) of Texas Tort Claims Act after alleged assault during arrest

John M. Donohue v. City of Boerne Chief of Police James Koehler, Officer Pablo Morales, and Martha L. Donohue, 04-16-00190-CV ( Tex.App—San Antonio, March 8,2017)

This is a Texas Tort Claims Act case where the San Antonio Court of Appeals affirmed the granting of a plea to the jurisdiction to a police officer and chief of police after an arrest.

John Donohue was arrested by Officer Morales for abuse of 9-1-1 services when he called police to help drive him to get food. Donohue alleges that during the arrest, Officer Morales grabbed his forearms and wrists and while forcefully placing the handcuffs on his wrists, caused his skin to tear and bleed. Donohue sued Officer Morales and the Chief of Police, James Koehler. He also sued his ex-wife Martha asserting she made false accusations and obtained a protective order improperly asserting he has violent tendencies. He asserts Officer Morales was aware of the alleged falsity behind the protective order, which is why Officer Morales responded during the arrest the way Donohue claims. Morales and Koehler filed pleas to the jurisdiction which were granted. Martha Donohue also filed a plea to the jurisdiction. Through a series of orders, Donohue asserts the plea was granted as to Martha. He appealed the dismissal of all three.

Donohue’s assertion that his claims are brought under the Texas Penal Code for assault, not the Texas Tort Claims Act are not supportable. The Penal Code does not provide for citizens to file civil suits, but authorizes the state to seek defined punishments for criminal violations. To the extent Donohue intended to assert a civil assault claim, such a claim is an intentional tort. The TTCA does not waive governmental immunity for intentional torts. Further, even though the TTCA does not waive immunity for any intentional tort claims brought by Donohue, those claims are still subject to Section 101.106(f) of the Act.  After a rather dizzying walkthrough of subsection (f), the court ultimately held Morales and Koehler were entitled to dismissal. Their alleged actions occurred in their official capacities as law enforcement officials and the claims could have been brought against the City even though the City would be entitled to immunity.  Further, the Texas Constitutional claims seek monetary damages, which are not allowed. There is no private cause of action against a governmental entity or its officials for money damages relating to alleged violations of Texas constitutional rights.   As a result, the trial court properly granted their plea. The court then held the dismissal of Martha Donohue was in error, but notes the explanation is contained in a separate lawsuit between the same parties and possessed the same plea arguments. Such arguments were not adopted by the court of appeals so the claims against Martha Donohue were revived and remanded.

If you would like to read this opinion click here. The Panel includes Justice Barnard, Justice Alvarez, and Justice Rios.  Justice Rios delivered the opinion of the court. To see the Representatives for the Appellant and Appellee click here.