Texas Supreme Court says sheriff’s deputies entitled to dismissal under election-of-remedies

DEPUTY COREY ALEXANDER AND SERGEANT JIMMIE COOK v. APRIL WALKER, 11-0606, — S.W.3d. – (Tex. June 6, 2014).

This is an interlocutory appeal in a Texas Tort Claims Act (“TTCA”) case where the election of remedies to sue an employee and the County come into play. The Court determined the officers were entitled to dismissal under Tex. Civ. Prac. & Rem. Code §101.06(f). The TTCA’s election of remedies provision often give attorneys headaches due to the appearance of conflicts amongst the subsections or an appearance of circular arguments. The Court attempted to provide guidance on how various sections are supposed to operate.

Walker filed suit against two sheriff’s deputies in state court and a separate case against the Sheriff and County in federal court arising from two arrests. In the state court action the deputies moved for summary judgment under various subsections of §101.106, which the trial court denied and the court of appeals affirmed. The deputies appealed.

The Court first noted when suit is brought against a government employee for conduct within the general scope of his employment, and suit could have been brought under the TTCA against the government, §101.106(f) provides that the suit is considered to be against the employee in the employee’s official capacity only and the individual employee is entitled to dismissal. However, since such a suit is against the employee in his official capacity, it is not a suit against the “employee” and therefore does not bar a suit against the entity under subsection (b). In contrast, subsection (a) contemplates a bar against the individual employee if the governmental entity is sued. The analysis of all subsections working together essentially turns on whether the employees were acting within the course and scope of their employment and whether the entity could have been sued under the TTCA for such official acts. In this case, Walker’s allegations stem from alleged improper conduct in the course of his arrest. Additionally, the allegations were nearly identical to those brought against the County in the federal case. As a result, the officers were acting within the course and scope of their employment. The Court then reiterated its holding that, barring an independent statutory waiver of immunity, tort claims against the government are brought “under this chapter [the TTCA]” for subsection (f) purposes even when the TTCA does not waive immunity for those claims.  As a result, subsection (f) requires the court to hold the officers were sued in their official capacity only and are entitled to dismissal on any individual basis.

If you would like to read this opinion click here. Per  Curiam opinion. The attorneys listed for Alexander are Mr. Bruce S. Powers, Mr. Fred A. Keys Jr., and Mr. Vincent Reed Ryan Jr.  The attorney listed for Walker is Mr. Lloyd E. Kelley.