author: JANE BLAND, Justice. EVELYN V. KEYES, Justice,

text:
    Jacob M. SCHAUER, Appellant, v. Charles Terrell MORGAN, Appellee.
    No. 01-04-00142-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 16, 2005.
    Rehearing Overruled Sept. 7, 2005.

      Norman Ray Giles, William S. Helfand, and Steven Jon Knight, Chamberlain, Hrdlieka, White, Williams & Martin, Houston, TX, for Appellant.
    Keith T. Gilbert, Houston, TX, for Ap-pellee.
    Panel consists of Justices KEYES, HANKS, and BLAND.
   OPINION

JANE BLAND, Justice.

Appellee Charles Terrell Morgan sues appellant Jacob M. Schauer, in his individual capacity, and in his capacity as a police officer with the City of Alvin. The lawsuit alleges (1) assault, (2) negligence, and (3) trespass to the person. Morgan’s claims arise out of Schauer’s arrest of Morgan. Upon the City’s intervention in the case, the trial court granted a summary judgment in its favor, which this court affirmed. Schauer then moved for summary judgment, contending that he is immune from personal liability. The trial court denied Schauer’s motion. In this interlocutory appeal, Schauer contends the trial court erred in denying his motion for summary judgment because he is immune from Morgan’s claims under the Texas Tort Claims Act and the doctrine of official immunity. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 101.106, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at Tex. Civ. PRAC. & Rem.Code Ann. § 101.106 (Vernon 2005)). We conclude that section 101.106 bars liability against Schauer and therefore reverse the trial court’s order.

Background

In March 2000, a manager of the Garden Gate Apartments asked Detective Schauer — who moonlighted as a security guard for the complex — to issue a trespass warning to Moses Johnson, a registered sex offender. Schauer drove past a laundromat and saw Morgan inside. Schauer entered the laundromat and asked whether Johnson was present. Morgan replied that he was not Johnson. Schauer then asked Morgan to produce identification. The parties dispute the length of time it took Morgan to respond to Schauer’s request, as well as whether or not Morgan used profanities in his response. It is undisputed, however, that the incident ended in Schauer’s arresting Morgan for disorderly conduct and failure to identify himself to a police officer.

Morgan alleges that, because he was slow to produce his identification, Schauer instigated a physical confrontation, handcuffed him, dragged him out of the laundromat, slammed his head against the hood of a parked car, and smashed his person to the gravel parking lot.

Procedural History

Morgan sued Schauer for personal injuries and trespass. Although Morgan initially did not name the City as a defendant in his original petition, he later amended his petition to allege that, during the incident in question, Schauer acted as (1) an agent of Garden Gate Apartments, (2) an individual, and, alternatively, (3) an agent of the Alvin Police Department.

Thereafter, the City intervened and answered, asserting that Schauer is entitled to official immunity and that the City is entitled to governmental immunity under the Texas Tort Claims Act. See generally Tex. Civ. PRAC. & Rem.Code Ann. § 101.001-.051 (Vernon 2005).

In April 2002, the City moved for summary judgment contending that it is a real party in interest for Morgan’s claims against Schauer in his official capacity, and that it is entitled to governmental immunity. The trial court granted the City’s motion. Subsequently, the trial court granted the City’s motion for severance, rendering the summary judgment granted in the City’s favor a final judgment. Morgan appealed the judgment in favor of the City to this court. We affirmed. See Morgan, 175 S.W.3d 408, 409, No. 01-02-01212-CV, 2004 WL 2005968, at ⅝8 (Tex. App.-Houston [1st Dist.] Sept. 9, 2004, no pet.).

Schauer then moved for a summary judgment as to Morgan’s claims against him, based on the immunity provided by section 101.106 of the Texas Civil Practice and Remedies Code and by official immunity. The trial court denied Sehauer’s motion and he appealed.

Standard of Review

We conduct a de novo review of the denial of a motion for summary judgment. See Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004) (per curiam) (reviewing denial of defendant’s plea to jurisdiction de novo); see also Drogin v. Campbell, 928 S.W.2d 205, 206 (Tex.App.-San Antonio 1996, no writ). To obtain summary judgment, a movant must show that no genuine issue of material fact exists, and that he is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); see also Morgan, at 413, 2004 WL 2005968, at *2. In reviewing a trial court’s denial of summary judgment, we accept all evidence in favor of the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant’s favor. Morgan, at 413, 2004 WL 2005968, at *2 (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985)). If a party moves for summary judgment based on an affirmative defense, such as section 101.106, then it has the burden to establish conclusively each element of the defense as a matter of law. Id. (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995), Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ)). Once established, the burden of raising a disputed fact issue as to an affirmative defense shifts to the nonmovant. Id. (citing Brand v. Savage, 920 S.W.2d 672, 673 (Tex.App.-Houston [1st Dist.] 1995, no writ)). Here, we examine whether a fact issue exists regarding the application of immunity under section 101.106. Id.

Section 101.106 of the Texas Tort Claims Act

Schauer contends the trial court erred in denying his motion for summary judgment because he is entitled to the derivative immunity provided by section 101.106 of the Texas Tort Claims Act, which provides that “[a] judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 101.106, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at Tex. Crv. PRAC. & Rem.Code Ann. § 101.106 (Vernon 2005)). This section provides that a judgment in an action against a governmental entity bars any action against an employee arising out of the same subject matter. Id. (emphasis added); see also Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex.1997); Thomas v. Oldham, 895 S.W.2d 352, 355 (Tex.1995). The Texas Supreme Court has held that the statutory language “bars any action ” is an unequivocal grant of immunity in this context. Newman, 960 S.W.2d at 622 (emphasis in original). In Thomas and later in Harris County v. Sykes, the Texas Supreme Court observed “[t]he purpose of section 101.106 is to protect employees of a governmental unit from liability when a judgment or settlement has been obtained from the government employer pursuant to a claim under Chapter 101 of the Texas Tort Claims Act.” Harris County v. Sykes, 136 S.W.3d 635, 640 (Tex.2004) (citing Thomas, 895 S.W.2d at 357). Thus, section 101.106 applies not only to judgments against governmental entities taken before suit is brought against an employee, but also to settlements or judgments taken against a governmental entity occurring at any time during the pendency of the action against the employee. Id.

Morgan observes that he sues Schauer in his individual capacity, as well as his official capacity as a police officer, and thus a fact issue exists as to the capacity in which Sehauer acted. As the dissent notes, moreover, this is not a case in which the governmental entity settled or suffered a judgment against it. Rather, the City received a judgment in its favor. The Texas Supreme Court, however, has determined that the language “bars any action” is an unequivocal grant of immunity to the governmental employee when a suit against the governmental entity has proceeded to a judgment, regardless whether the judgment is for or against the governmental entity. See Dallas County Mental Health & Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998) (stating that immunity conveyed to governmental employees by Section 101.106 is triggered by any judgment, including favorable one for governmental entity); see also Newman, 960 S.W.2d at 622; Aguilar v. Ramirez, No. 13-03-00339-CV, 2004 WL 1353723, at *2 (Tex.App.-Corpus Christi June 17, 2004, pet. denied) (mem.op.).

Moreover, section 101.106 does not limit its application to governmental employees acting within the scope of their employment or in good faith. Owens v. Medrano, 915 S.W.2d 214, 216 (Tex.App.Corpus Christi 1996, writ denied). Instead, the relevant inquiry is whether the plaintiffs claims against the governmental entity arise under the Texas Tort Claims Act, not whether the plaintiffs individual claims do so. See White v. Annis, 864 S.W.2d 127, 130 (Tex.App.-Dallas 1993, writ denied); see also Bell v. Love, 923 S.W.2d 229, 233 (Tex.App.-Houston [14th Dist.] 1996, no writ). A judgment under the Texas Tort Claims Act bars actions against the governmental employee individually arising out of the “same subject matter,” as opposed to the same cause of action. Bossley, 968 S.W.2d at 344 (providing that in applying section 101.106 to causes of action brought against defendant in his individual capacity, “same subject matter” in section 101.106 means “arising out of the same actions, transactions, or occurrences”).

We previously have recognized that the immunity extended by section 101.106 is harsh, for it requires a plaintiff to elect at the outset of the litigation whether to pursue a defendant in any governmental capacity for which his employer later may be found to have immunity, and thus eliminate any pursuit of claims brought against the defendant in an individual capacity. Brand, 920 S.W.2d at 675; see also McGowen v. Huang, 120 S.W.3d 452, 459 (Tex.App.-Texarkana 2003, pet. denied). The Texas Supreme Court has noted:

Although a plaintiff who pursues the statutory remedy against the government may lose his or her common law remedy against the employee, the plaintiff is not required to follow this course. He or she may still opt to pursue the full common law remedy against the responsible employee, foregoing or postponing any attempt to recover from the government.

Oldham, 895 S.W.2d at 357-58. Thus, “[o]nce the plaintiff invokes the procedural devices of the Texas Tort Claims Act, to bring a cause of action against the State, then he also is bound by the limitations and remedies provided in the statute.” State Dep’t of Highways & Pub. Transp. v. Dopyera, 834 S.W.2d 50, 54 (Tex.1992); see also Brand, 920 S.W.2d at 675 (stating that if plaintiff chooses to bring action under Act, “she is bound by its provisions and limitations including section 101.106”).

Here, Morgan’s claims against Sehauer, as an agent of the Alvin Police Department, constituted claims against the City. See Morgan, at 421, 2004 WL 2005968, at *8 (holding that with respect to claims against police officer, in his official capacity, City is real party in interest). Applying the standards for governmental immunity provided by the Texas Tort Claims Act, we affirmed the trial court’s summary judgment granted to the City. Id. Applying section 101.106, we hold that the trial court’s final judgment dismissing Morgan’s claims against the City bars Morgan’s claims against Schauer individually because they are claims that arise out of the same occurrence — i.e., Sehauer’s alleged tortious misconduct at the laundromat. Accordingly, we hold that the trial court erred in denying Schauer’s motion for summary judgment.

Conclusion

We hold that the applicable version of section 101.106 of the Texas Tort Claims Act bars actions against governmental employees individually if a settlement or judgment exists as to their governmental employer arising out of the same occurrence. We therefore reverse the trial court’s order denying Schauer’s summary judgment and render judgment that Morgan take nothing. We deny Morgan’s request for appellate sanctions.

Justice KEYES, concurring and dissenting.

EVELYN V. KEYES, Justice,

concurring and dissenting.

I join the panel’s opinion insofar as it holds that Morgan’s claims against Schauer in his official capacity are barred by section 101.106 of the Tort Claims Act. I respectfully dissent from the opinion insofar as it holds that Morgan’s claims against Schauer in his individual capacity are barred by section 101.106. I write separately for two reasons: to clarify the scope of the Court’s opinion and to explain my dissent.

Morgan originally sued Schauer in his individual capacity and as an employee of the Garden Gate Apartments (“Garden Gate”) for injuries sustained when Schauer, an Alvin police officer and security guard for Garden Gate, mistook Morgan for a person on whom he was trying to serve a no-trespassing warning on behalf of the apartments. Morgan alleged that when he refused to identify himself Schauer arrested him, manhandling him and throwing him onto the hood of Schauer’s car and to the ground in the process. Because Morgan alleged that Schauer injured him in his official capacity as a peace officer, the City intervened and moved for summary judgment on grounds of immunity. We held that the City was the real party in interest for Morgan’s suit against Schauer in his official capacity and that the City’s immunity to liability for the torts alleged to have been committed by Schauer was not waived by the Tort Claims Act. The Court now holds that, under former section 101.106 of the Tort Claims Act, Schauer, likewise, is entitled to immunity from liability of Morgan’s claims against him “involving the same subject matter,” whether those claims are brought against him in his individual capacity or in his official capacity. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 101.106, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at Tex. Civ. PRAC. & Rem.Code Ann. § 101.106 (Vernon 2005)). I believe this holding rests on an overbroad interpretation of former section 101.106 by this Court and its sister courts of appeal. See id.

The Court’s opinion is grounded in case law interpreting section 101.106, particularly Thomas v. Oldham, 895 S.W.2d 352 (Tex.1995) and Newman v. Obersteller, 960 S.W.2d 621 (Tex.1997). These two cases, and their implications, are very different from each other, however. In Thomas, the plaintiff sued Oldham, Oldham’s employer, and the City of Houston for injuries sustained when Oldham’s car rear-ended Thomas’s during the course of Old-ham’s employment. Thomas, 895 S.W.2d at 354. Thomas obtained money judgments against both Oldham and the City, and both parties appealed. Id. The Texas Supreme Court held, “The express language of section 101.106 states that a judgment in an action against the governmental unit bars any action against the employee.” Id. at 355 (emphasis in original). It added, “Rather than providing blanket protection to employees, however, section 101.106 merely protects them in those situations where a judgment or settlement is obtained from the governmental employer.” Id. at 357 (emphasis added). It explained:

The Tort Claims Act broadened, rather than restricted, an injured party’s remedies. At common law, municipalities performing governmental functions were completely immune from liability. The Tort Claims Act created a limited waiver of that immunity. Although a plaintiff who pursues the statutory remedy against the government may lose his or her common law remedy against the employee, the plaintiff is not required to follow this course. He or she may still opt to pursue the full common law remedy against the responsible employee, foregoing or postponing any attempt to recover from the government.

Id. at 357-58.

Under Thomas, section 101.106 bars a suit for damages against a governmental employee when the plaintiff has already obtained a money judgment or settlement against his governmental employer based on the same subject matter; in other words, section 101.106 acts as a bar to double recovery. The injured party may elect to sue the governmental employee individually and may recover against him so long as he does not recover the same damages from the government; the employee is not, however, provided “blanket protection” against an individual suit for damages if the plaintiff chooses to recover damages from him rather than from the government.

In Newman, the Texas Supreme Court greatly expanded its holding in Thomas. The plaintiff, Obersteller, a high school student, and his parents sued a school district and the district’s head coach and athletic director, Newman, for intentional infliction of emotional distress. Newman, 960 S.W.2d at 622. No judgment was entered against the school district; rather, summary judgment was entered in favor of the school district on the ground that its immunity to liability was not waived by the Tort Claims Act. See id. The trial court denied Newman’s own motion for summary judgment on grounds of immunity under section 101.106 and section 21.912 of the Education Code, and Newman filed an interlocutory appeal. Id. The Texas Supreme Court held,

Section 101.106 provides that a judgment in an action against a governmental unit bars any action against an employee. Tex. Crv. PRAC. & Rem.Code Ann. § 101.106; Thomas v. Oldham, 895 S.W.2d 352, 355 (Tex.1995). The Texas Tort Claims Act is a waiver of governmental immunity by the state for certain actions. Tex. Civ. PRac. & Rem.Code Ann. § 101.025. However, the Legislature has provided some exceptions to this waiver, one of which is an action against an individual employee when a suit against a governmental entity involving the same subject matter has proceeded to judgment. Tex. Civ. Prac. & Rem.Code Ann. § 101.106. The language “bars any action” is an unequivocal grant of immunity in this context. That section 101.106 does not use the word “immunity” is of no consequence.

Id. (emphasis in original). Thus, the supreme court held that a governmental employee is immune to suit for damages arising out of his torts if the employer is immune, even though section 101.106 as it existed in its prior version (and as it exists today) never uses the term “immunity.”

Justice Abbott wrote a vigorous dissent to Newman’s expansion of the rule established in Thomas. See 960 S.W.2d. at 623 (Abbott, J., dissenting). In Justice Abbott’s view, former section 101.106 provided only that suit was barred against an employee for the same acts that had given rise to a judgment or settlement against the governmental unit by which he was employed; suit was not barred by a judgment in favor of the governmental entity on the basis of governmental immunity. See id. at 624. He pointed out that a bar does not equate to immunity and that an immunity defense is a concept “completely different” from the defense afforded governmental employees by section 101.026. Id. Specifically, the immunity defense provides that “[government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.” Id. (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)). Justice Abbott also observed that section 101.106 was not located in the “exclusion and exception” section of the Tort Claims Act but in the “procedures” section, and, as interpreted by the Newman majority, was in tension with section 101.026, “Individuals’ Immunity Preserved,” which was in the “exclusion and exception” section and stated: “To the extent an employee has individual immunity from a tort claim for damages, it is not affected by this chapter.” Id.; see Tex. Civ. Prac. & Rem.Code Ann. § 101.026 (Vernon 2005).

Following Newman, our sister courts— and today this Court — have interpreted former section 101.106 as a statute conferring immunity on governmental employees for acts committed in the course of their employment equal to the immunity enjoyed by their employer. This blanket immunity is limited only by the necessity of obtaining a judgment holding that the governmental entity is immune to suit. In other words, the appellate courts have interpreted section 101.106 as providing the “blanket immunity” Thomas stated it did not provide. The effect has been the elimination of the distinction between liability claims brought against a governmental employee in his individual capacity for torts committed in the exercise of public duties and those brought against him in his official capacity. Additionally, this interpretation has eliminated the distinction between the absolute sovereign immunity enjoyed by governmental entities, except where that immunity is expressly waived, and the qualified immunity enjoyed at common law by governmental employees sued in their individual capacities which Justice Abbott referenced in his Newman dissent.

The distinction between suits brought against governmental employees in their official capacities and suits brought against them in their individual capacities is crucial. The United States Supreme Court explained the difference in Kentucky v. Graham: individual-capacity suits “seek to impose personal liability upon a government official for actions he takes under color of state law,” while official-capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). Unlike a suit against the public employee in his official capacity, which is a suit against the government, a suit against him in his individual capacity is a suit against his personal assets. Id. at 166, 105 S.Ct. at 3105. The Supreme Court observed that a state official sued in his individual capacity may be able to assert personal immunity defenses, including the defense of qualified official immunity, but that these defenses are unavailable in an official-capacity action precisely because liability in such an action lies only against the government. Id. at 166-67, 105 S.Ct. at 3105-06.

Like federal law, Texas law exclusive of the line of cases interpreting section 101.106 limits the immunity of a governmental employee sued in his individual capacity to (1) discretionary acts, (2) performed in good faith, and (3) within the scope of his authority; the employee’s immunity is thus “qualified” official immunity, as opposed to absolute sovereign immunity. See, e.g., Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004); City of Lancaster, 883 S.W.2d at 653. However, the appellate courts that have interpreted section 101.106 in the wake of Newman, including this Court today, have observed that “[ujnlike other provisions of the Tort Claims Act, section 101.106 does not say that the provision applies only when the employee is acting within the scope of his employment or in good faith.” Aguilar v. Ramirez, No. 13-03-00339-CV, 2004 WL 1353723, at *2 (Tex.App.-Corpus Christi 2004, pet. denied) (mem.op.); Owens v. Medrano, 915 S.W.2d 214, 216 (Tex.App.-Corpus Christi 1996, writ denied); City of Galveston v. Whitman, 919 S.W.2d 929, 931-32 (Tex.App.-Houston [14th Dist.] 1996, pet. denied). Thus, they have held or implied that, in cases to which section 101.106 applies, it is not necessary for a governmental employee sued in his individual capacity to prove his entitlement to the affirmative defense of official immunity — his immunity to liability is coextensive with that of his employer, which is absolute unless expressly waived by the Tort Claims Act. The result of this uniquely strong interpretation of the immunity conferred by section 101.106 is that “[t]he immunity extended by section 101.106 has been recognized as harsh.” Aguilar, 2004 WL 1353723, at *3; Brand v. Savage, 920 S.W.2d 672, 675 (Tex.App.-Houston [1st Dist.] 1995, no writ).

In its opinion today, this Court has recognized that the remedy in cases where a governmental employee enjoys immunity derivative of his employer’s under section 101.106 is indeed “harsh.” However, we have opined, returning to and quoting the Texas Supreme Court in Thomas, that the harshness of the immunity granted to governmental employees by section 101.106 is alleviated by the plaintiffs ability to forego or postpone any attempt to recover from the government until after he has sued the individual employee. See Thomas, 895 S.W.2d at 357-58. I fear, however, that this right has become illusory as the case law has evolved beyond Thomas.

In this case, Morgan did not sue the City of Alvin; he sued only Garden Gate and Schauer in his individual capacity, alleging that Schauer was guilty of assault, negligence, and trespass to his person as an agent of the City police force. Once Morgan admitted, however, that he was asserting a claim against Schauer in his official capacity as a police officer for the City, the City intervened, claiming correctly that it was the real party in interest for claims brought against Schauer in his official capacity. See Morgan, at 414, 2004 WL 2005968, at *3; see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (providing that suit against police officer in his official capacity is merely another way of pleading suit against governmental agency of which officer is agent). Then, the City successfully moved for summary judgment on the ground .that it was immune from the damage claims brought against it unless its immunity was waived by section 101.106 of the Tort Claims Act, which it was not, and we affirmed that judgment. We have now gone much further, however, in line with our sister courts’ interpretation of Newman, and have derivatively immunized Schauer from liability in his individual capacity from any and all claims arising from “the same subject matter.”

The expansive interpretation of former section 101.106 by the appellate courts, including this one, has extended absolute protection to governmental employees for all torts committed in the exercise of their governmental duties, whether they were sued in their official capacity only, or in their individual capacity as well, and whether they were acting in good faith or within the scope of their authority or not. Under this interpretation of section 101.106, because a governmental entity is immune from liability for the intentional torts of its employees, such as assault and battery, the employee is immune from liability for those torts as well. The usual limits of the qualified immunity accorded governmental employees does not apply. Thus, this broad interpretation of the statute removes a powerful incentive for governmental entities and governmental employees to control the behavior of persons carrying out governmental duties — the threat of individual liability for those governmental employees who carry out their official duties in bad faith or outside the scope of their authority.

I can find no indication in the Tort Claims Act or in its legislative history that the Legislature intended to create a uniquely powerful immunity statute by enacting section 101.106. Rather, in Thomas, the Supreme Court construed section 101.106 as having the same intent as the federal statute on which it was modeled, namely “barring simultaneous judgments against the United States and its employees.” 895 S.W.2d at 357. As the Dallas Court of Appeals stated prior to Thomas,

The purpose of the statute is clear — to protect a government employee from individual liability for acts or omissions done in the course and scope of his employment when the plaintiff obtains a judgment or settlement on the claim against the governmental employer for a claim under the Tort Claims Act based on the same subject matter.

White v. Annis, 864 S.W.2d 127, 132 (Tex.App.-Dallas 1993, pet. denied). The courts have lost sight of this purpose in their judicial expansion of the protection afforded by section 101.106, even as the Legislature itself has explicitly styled revised section 101.106 an “Election of Remedies” statute and has failed to revise its immunity provision stating that an employee’s individual immunity from a tort claim for damages is not affected by Chapter 101. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.106, 101.026. In other words, the Legislature seems to agree with Thomas and with Justice Abbott’s distinction in Newman, while the courts — at least the appellate courts interpreting former section 101.106 — do not.

The extension of blanket protection to governmental employees for torts committed in the exercise of their governmental duties — regardless of the capacity in which they are sued — should not be the inadvertent effect of the judicial interpretation of a statute that does not use the term “immunity” and that is naturally interpreted (1) as barring double recovery against both a governmental entity whose immunity to suit has been waived by the Tort Claims Act and the governmental employee whose torts in the exercise of his governmental duties gave rise to the suit against the government and (2) beyond that, when a governmental entity has been held immune to suit arising out of the torts of its employee, only as barring claims made against the employee in his official capacity — not as barring liability claims made against him in his individual capacity, unless he establishes a qualified official immunity defense.

Last year, in Ballantyne, the Texas Supreme Court stated the purpose of the official immunity defense, namely, “the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation.” Ballantyne, 144 S.W.3d at 424. It stated, “The public would suffer if government officials, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decisions.” Id. (quoting Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994)). Once again, the court recognized official immunity as an affirmative defense that acts as “a bar to state law claims” against governmental employees but that protects those officials only “from suit arising from performance of their (1) discretionary duties (2) in good faith (3) within the scope of their authority.” 144 S.W.3d at 422-24 (emphasis added). The same concept of qualified official immunity should apply in a suit to which section 101.106 applies — i.e., a suit brought against a governmental employee in his individual capacity for torts committed in the exercise of his public duties — even when the official immunity of the governmental entity for which he works has not been waived and suit against the employee in his official capacity is therefore barred.

Thus, while I join in the Court’s opinion in holding that Morgan’s suit against Schauer in his official capacity is barred by former section 101.106 of the Tort Claims Act, I dissent insofar as the opinion holds that section 101.106 in either its former or its current form deprives a plaintiff of his right to maintain a suit for liability against a governmental employee in his individual capacity for torts committed while carrying out his governmental duties simply because the plaintiff has also sued the governmental employee in his official capacity and the governmental employer has been held immune to liability. I also dissent insofar as the opinion construes former section 101.106 as relieving the governmental employee of the necessity of proving the affirmative defense of qualified immunity to claims brought against him in his individual capacity for torts committed in the exercise of his governmental duties.

I would hold that, while Morgan’s claims against Schauer in his official capacity as an agent of the City of Alvin are barred by former section 101.106, Morgan’s claims against Schauer in his individual capacity for torts committed in the exercise of his duties as a peace officer are not barred by former section 101.106, but that Schauer is entitled to assert the affirmative defense of qualified official immunity to those claims.

      . Morgan v. City of Alvin, 175 S.W.3d 408, 409, No. 01-02-01212-CV, 2004 WL 2005968, at *8 (Tex.App.-Houston [1st Dist.] Sept. 9, 2004, no pet.).

      . We observe, like the dissent, that our decision interprets the former version of Texas Civil Practice and Remedies Code § 101.106. The amended section became effective September 1, 2003, after Morgan filed this action, and it applies to actions filed on or after the effective date. The prior section reads that "[a] judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” The current version of section 101.106 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 against any individual employee of the governmental unit regarding the same subject matter.” Tex Civ. Prac. & Rem.Code Ann. § 101.106(a) (Vernon 2005). The Legislature further clarified that "[i]f a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.” Id. at § 101.106(f).

      . See Tex Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon 1997 & Supp.2004-2005) (allowing interlocutory appeals of orders denying motions for summary judgment based on assertion of immunity by officer or employee of State or political subdivision).

      . As we conclude that section 101.106 is dis-positive of Morgan’s claims, we need not address Schauer’s official immunity issue. See TexR.App. P. 47.1.

      . Morgan v. City of Alvin, 175 S.W.3d 408, 413-14, 01-02-01212-CV, 2004 WL 2005968, at *2-3 (Tex.App.-Houston [1st Dist.] Sept. 9, 2004, no pet.) (designated for publication). As the Court made clear in its earlier opinion, Schauer’s immunity extends only to his actions as a peace officer — not to his actions in his individual capacity as an employee of a private employer, Garden Gate. See Morgan, at 416-17, 2004 WL 2005968, at *4. We remanded the cause to the trial court to determine whether Schauer was acting as a peace officer or as a servant of Garden Gate when Morgan's injuries occurred. The trial court determined that Schauer was not acting as a servant of Garden Gate, and it rendered summary judgment in favor of Garden Gate. That judgment is not on appeal.

      . This suit was brought under former section 101.106 of the Tort Claims Act, which, at the time suit was filed, provided, "A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 101.106, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 2005)).

      . In 2003, the Legislature rewrote this section, which had been titled, "Employees Not Liable After Settlement or Judgment.” The revised provision is titled "Election of Remedies.” See Tex Civ. Prac. & Rem.Code Ann. § 101.106(f) (Vernon 2005).

      . Revised section 101.106, "Election of Remedies,” is likewise not in the immunity section of the Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 2005). Section 101.026 is unchanged. See id. § 101.106, Historical Notes.

      . In 2004, the Texas Supreme Court reiterated its holding in Newman that when a trial court has dismissed tort claims against a governmental entity on the ground that the entity's governmental immunity has not been waived by the Tort Claims Act, the employee whose acts gave rise to the claim against the governmental entity "is entitled to derivative immunity under section 101.106 of the Texas Tort Claims Act.” Harris County v. Sykes, 136 S.W.3d 635, 640 (Tex.2004). However, the court did not discuss the scope of the employee’s derivative immunity.

      . Revised section 101.106 provides that a plaintiff must elect whether to sue the governmental employee or the governmental employer; if suit brought against a governmental employee "could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only,” and the suit against the employee must be dismissed on his motion. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f) (Vernon 2005) (emphasis added). Because suit cannot be brought against a governmental unit unless the Tort Claims Act waives immunity, the problem generated as the courts struggle with Newman may be self-limiting as suits are brought under the revised procedures.


source: Caselaw Access Project

author: SHERRY RADACK, Chief Justice.

license: Public Domain

text:
    Charles Terrell MORGAN, Appellant, v. The CITY OF ALVIN, Texas, Appellee.
    No. 01-02-01212-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 9, 2004.

      Keith T. Gilbert, Houston, for Appellant.
    William S. Helfand and Norman Ray Giles, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

Charles Terrell Morgan, appellant, appeals an order granting summary judgment in favor of the City of Alvin (the City), sued through its police officer, J. Schauer in his official capacity. The trial court severed the summary judgment in favor of the City and made it final for purposes of appeal. In three points of error, appellant contends that the trial eourt erred by (1) granting the City’s summary judgment motion because the City is not a named defendant; (2) denying appellant an opportunity to conduct sufficient discovery, while allowing the City to “arbitrarily enter and exit this matter”; and (3) refusing to abate the City’s summary judgment motion. We affirm.

Background

On March 22, 2000, Detective Jacob Schauer, a security guard for Garden Gate Apartments and a police officer with the City of Alvin Police Department, was asked by a member of the management of the Garden Gate Apartments to issue a trespass warning to a registered sex offender named Johnson. Schauer drove past a laundromat and saw appellant. Schauer followed appellant into the laundromat and asked whether he was Johnson. When appellant said he was not, Schauer asked him to identify himself. The parties dispute how long it took appellant to respond to Schauer’s request, as well as whether or not appellant used profanities in his response. However, it is undisputed that the incident ended in Schauer’s arresting appellant for disorderly conduct and failure to identify himself to a police officer.

Appellant alleges that, when he was slow to get out his identification, Schauer instigated a physical confrontation, handcuffing appellant, dragging him out of the laundromat, slamming his head against the hood of a parked car and “smashing his person” to the gravel parking lot.

Procedural History

Appellant sued Schauer, alleging that he sustained personal injuries due to Schauer’s tortious conduct, including assault, negligence, and trespass to the person. Although appellant did not name the City as a defendant in his original petition, he amended his petition to allege that Schauer was guilty of assault, negligence, and trespass to the person, as (1) an agent of Garden Gate, and, alternatively, (2) as an individual, and (3) as an agent of the Alvin Police Department. (Emphasis added). Thereafter, the City answered, asserting that Schauer is entitled to official immunity and that the City is entitled to governmental immunity under the Texas Tort Claims Act (the Act). Tex. Crv. PRAC. & Rem.Code Ann. §§ 101.001-.051. (Vernon 2004).

On April 24, 2002, the City filed a combined motion for summary judgment and alternative plea to the jurisdiction, asserting that the City is a real party in interest for claims brought against Schauer in his official capacity, and, that it is entitled to governmental immunity. During the hearing on the City’s summary judgment motion, appellant argued that, although he was suing Schauer in his official capacity, appellant was not suing the City. The City responded that, under Texas case law, a suit against Schauer in his official capacity constitutes a suit against the City. The trial court granted the City’s combined motion for summary judgment and alternative plea to the jurisdiction. Additionally, the trial court denied appellant’s combined motions for continuance and abatement. Subsequently, the City moved for severance, and the trial court granted the motion, effectively making final the prior summary judgment granted in the City’s favor.

Discussion

Standard of Review

A party moving for summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Farah v. Mafrige & Kormanik, 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. at 549. When a defendant moves for summary judgment, it must either (1) disprove at least one element of the plaintiffs cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiffs cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Farah, 927 S.W.2d at 670.

When, as here, an affirmative defense like immunity is established, the burden of raising a disputed fact issue shifts to the non-movant. Brand v. Savage, 920 S.W.2d 672, 673 (Tex.App.-Houston [1st Dist.] 1995, no writ). Therefore, we must examine the summary judgment evidence to determine whether a fact issue exists regarding the application of sovereign immunity. Id. Specifically, we must determine whether appellant established that his claim fell within a waiver of immunity to which no exception applied. See id.

City’s Immunity for Claims ayainst Schauer in his Official Capacity

A plaintiff may sue a governmental employee or official in the person’s official capacity, personal capacity, or both. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (defining distinctions between personal-and official-capacity action suits). A suit against a government official in his personal capacity seeks to impose personal liability upon a governmental employee or official for actions taken under color of state law. Harris County v. Walsweer, 930 S.W.2d 659, 665 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (citing Graham, 473 U.S. at 165, 105 S.Ct. at 3105). An award of damages against an official in his personal capacity can be executed only against the official’s personal assets. Id. (citing Graham, 473 U.S. at 165, 105 S.Ct. at 3105).

In contrast, official-capacity suits seek to impose liability upon the governmental entity the official represents, and any judgment in such a suit is collectible only against the governmental entity, not against the official’s personal assets. Id. (holding that official-capacity judgment against Harris County constable and deputies imposed liability on Harris County, and, was “for all purposes a judgment against Harris County and must be paid by Harris County”) (citing Graham, 473 U.S. at 165, 105 S.Ct. at 3105). In Graham, the United States Supreme Court explained that

[o]fficial-capacity suits ... “generally represent only another way of pleading an action against an entity of which an officer is an agent.” As long as the governmental entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.

Graham, 473 U.S. at 165-66, 105 S.Ct. at 3105 (citations omitted). See also Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361, 116 L.Ed.2d 301 (1991) (suits against state officials in official capacity treated as suits against the State).

A police officer is an agent of government. Blackwell v. Harris County, 909 S.W.2d 135, 138 (Tex.App.-Houston [14th Dist.] 1995, writ denied). All of his power and authority is derived from the governmental entity that employs him. Id. A suit against a police officer in his official capacity is merely another way of pleading a suit against the governmental entity of which the officer is an agent. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); Scott v. Britton, 16 S.W.3d 173, 180 (Tex.App.-Houston [1st Dist.] 2000, no pet.); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.Houston [1st Dist.] 1995, no writ). The suit is, therefore, the same as one brought directly against the state. Will, 491 U.S. at 71, 109 S.Ct. at 2312; Britton, 16 S.W.3d at 180; Kmiec, 902 S.W.2d at 122. In such a case, the governmental entity is a real party in intei'est. Hafer, 502 U.S. at 25, 112 S.Ct. at 361; McCartney v. May, 50 S.W.3d 599, 606 (Tex.App.-Amarillo 2001, no pet.).

Liability of City for Officer’s Tortious Acts in Official Capacity

In his first point of error, appellant contends that the trial court erred by granting summary judgment to the City when it was “factually unclear” whether the City was a defendant in his original cause of action. Specifically, appellant complains that the City was not a named defendant.

Although appellant did not directly name the City, he sought to impose liability on the City for the incidents forming the basis of the underlying suit. To further this aim, appellant amended his petition to allege that Schauer was guilty of assault, negligence, and trespass to the person, as an agent of the Alvin Police Department. (Emphasis added). Moreover, in appellant’s response to Schauer’s request for admissions, appellant admitted that he was asserting a claim against Schauer in his official capacity as a police officer for the City. Based upon appellant’s own pleadings and admissions, we conclude that appellant has asserted claims against Schauer in his official capacity as a police officer for the City, and, thus, with respect to those claims, that the City is a real party in interest. Hafer, 502 U.S. at 25, 112 S.Ct. at 361; McCartney, 50 S.W.3d at 606. Accordingly, we turn then to the question of sovereign immunity.

Schauer’s Official Capacity as a City Police Officer

In the case at bar, the City is a governmental unit to which the doctrine of governmental immunity applies. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(3)(B) (Vernon Supp.2004). As discussed above, a police officer is an agent of government. Blackwell, 909 S.W.2d at 139.

In determining the status of a police officer, we analyze the capacity in which the officer acted at the time he committed the acts for which the complaint is made. Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 344 (Tex.App.-Houston [14th Dist.] 2003, no pet. h.) (citing Blackwell, 909 S.W.2d at 139). “If the officer is performing a public duty, such as the enforcement of general laws, the officer’s private employer incurs no vicarious responsibility for that officer’s acts, even though the employer may have directed the activities. If the officer was engaged in protecting the employer’s property, ejecting trespassers, or enforcing rules and regulations promulgated by the employer, however, the trier of fact decides whether the officer was acting as a public officer or as a servant of the employer.” Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship, 37 S.W.3d 145, 150 (Tex.App.-Austin 2001, no pet.) (deciding issue as matter of law); Blackwell, 909 S.W.2d at 139.

If an off-duty officer observes a crime, as a matter of law, he becomes an on-duty officer for purposes of determining whether or not a private employer is vicariously liable for the officer’s actions. Cherqui, 116 S.W.3d at 344 (reckless driving); see also Mansfield, 37 S.W.3d at 150 (trespassing and indecent exposure); City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex.App.-Dallas 1994, no writ) (removing taillight lens from car and fleeing scene of crime). An officer’s public duty may also be triggered by reasonable suspicion to detain a person for investigation even if the officer lacks knowledge of facts justifying an arrest based on probable cause. See Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991) (“[E]ven a temporary detention ... is not permissible unless the circumstances upon which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity.”). When an officer enforces general laws, he acts in the course and scope of his employment as a police officer. Cherqui, 116 S.W.3d at 344 (officer enforcing temporary no-parking signs and ticketing cars); Blackwell, 909 S.W.2d at 140 (officer escorting motorcade for purpose of directing traffic).

Here, appellant asserts that a fact issue exists as to whether, at the time of the incident, Sehauer “was serving in a ‘dual capacity’ — that of a police officer for the City of Alvin and that of a security guard for the Garden Gate Apartments.” In his deposition testimony, appellant stated that after Sehauer entered the laundromat and asked whether “any of you all are Moses Johnson,” appellant replied that he was not and gave Sehauer his name. Appellant testified that Sehauer then asked him for identification. When he responded too slowly, appellant reported, Sehauer instigated a physical confrontation.

In a sworn affidavit attached to the City’s summary judgment motion, Sehauer stated that, when he saw appellant at the laundromat, he believed him to be Johnson, the individual to whom he had been asked to issue a trespass warning. Sehauer reported that he followed appellant inside the laundromat and asked him if he were Johnson. Sehauer testified that, after appellant denied being Johnson, he asked appellant his name in order to investigate further to verify that appellant was not, in fact, Johnson. Sehauer indicated that, after appellant refused to provide him with any identifying information and uttered profanity, he attempted to arrest appellant.

City’s Governmental Immunity

1. Assault Claim

Generally, the State, its agencies, and subdivisions, enjoy sovereign immunity from tort liability unless immunity has been specifically waived by the legislature. Tex. Civ. PRAc. & Rem.Code Ann. §§ 101.001(3)(A-B), 101.025 (Vernon Supp. 2004); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002); City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex.App.-Houston [1st Dist] 1999, pet. denied). The Texas Tort Claims Act (the Act) creates a limited waiver of governmental immunity for political subdivisions of the state, like the City. Tex. Civ. PRAC. & Rem. Code Ann. § 101.021 (Vernon 2004). In order for immunity to be waived under the Act, the claim must arise under one of the three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exceptions from waiver. Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

The Act expressly waives a city’s governmental immunity in three general areas: (1) injury caused by an employee’s use of a- motor-driven vehicle within the scope of his employment; (2) injury caused by a condition or use of tangible personal or real property; and (3) premise defects. Tex. Civ. PRac. & Rem.Code Ann. § 101.021-.022 (Vernon Supp.2004); Brown, 80 S.W.3d at 554. However, this waiver of immunity does not extend to claims arising out of intentional torts. Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (Vernon Supp. 2004); Scott, 7 S.W.3d at 719. Rather, the Act specifically excludes waiver for a claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” See Tex. Civ. PRác. & Rem.Code Ann. § 101.057 (Vernon Supp.2004).

In the underlying claim, appellant asserted that, after failing to identify himself as an on-duty police officer, Schauer “harassed, manhandled, and assaulted” appellant when he did not provide proof of identification to Schauer immediately. Additionally, appellant asserted that Schauer assaulted appellant by using unnecessary force, dragging appellant out of the laundromat, slamming appellant’s head against the hood of an unmarked police car, and “smashing his person” to the gravel parking lot.

The elements of assault are the same in both civil and criminal cases. Forbes v. Lanzl, 9 S.W.3d 895, 899 (Tex.App.-Austin 2000, petdenied). A person commits an assault by (1) intentionally, knowingly, or recklessly causing bodily injury to another; (2) intentionally or knowingly threatening another with imminent bodily injury; or (3) intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code Ann. § 22.01 (Vernon 2004); Forbes, 9 S.W.3d at 900; Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 522 (Tex.App.-San Antonio 1996, pet. denied). Appellant’s allegations of assault fit squarely within section 101.057’s exclusion of claims arising out of intentional torts. See Tex. Civ. Prac. & Rem.Code Ann. § 101.057; Tex. Dept. Of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex.2001). Therefore, any waiver of immunity under the Tort Claims Act is precluded, and the City has no liability for Schauer’s alleged assault of appellant.

2. Negligence Claim

Appellant alleges that Schauer is guilty of negligence by initiating a physical confrontation with appellant, breaching Schauer’s duty “to perform his offi-ciaVquasi-official/extra-official functions without injuring others.” Appellant also contends that Schauer proximately caused appellant’s physical injuries by using unnecessary force on appellant after appellant retrieved his proof of identification too slowly. Thus the conduct appellant complains of as negligence is the same conduct that forms the basis of his assault claim against Sehauer. See Petta, 44 S.W.3d at 580; Holland v. City of Houston, 41 F.Supp.2d 678, 713-14 (S.D.Tex.1999). Thus, appellant’s negligence claim against Sehauer focusing on Schauer’s initiating a physical confrontation with appellant is in essence an intentional tort claim and does not fall within the Tort Claims Act’s waiver of governmental immunity. See Petta, 44 S.W.3d at 580; Holland, 41 F.Supp.2d at 714.

3. Trespass to the Person

Appellant also contends that Sehauer committed “trespass to the person” by initiating a physical confrontation with appellant and “subjectively and tortuously defining the parameters for [appellant] to answer [Schauer’s] interrogatories.” Appellant defines “trespass to the person as an unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another.” He contends that the Tort Claims Act waives the City’s immunity for such acts. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.021. The conduct appellant complains of in his “trespass to the person” claim is the same conduct that forms the basis of his assault claim, namely, Schauer’s arrest of appellant and Schauer’s use of force against appellant. Therefore, we construe appellant’s “trespass to the person” allegations to be part and parcel of appellant’s assault claim. See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967).

I. Schauer’s Capacity

The parties dispute whether Sehauer acted in his official capacity or as an employee of the Garden Gate Apartments at the time of the incident. Appellant, in fact, alleges both, in the alternative: primarily, that he acted unofficially on behalf of Garden Gate Apartments, but, alternatively, that, if he acted as a police official, then he did so in bad faith. Regardless of Schauer’s employment status at the time of the incident, appellant’s pleadings cannot allege a separate claim against the City. If Sehauer acted within the course and scope of his employment of the City, then, as discussed above, the City has sovereign immunity for appellant’s claims, and the law provides no waiver of that immunity. See Tex. Civ. PRAC. & Rem. Code Ann. § 101.021-.022 (Vernon Supp. 2004). In such a circumstance, whether Sehauer has official immunity depends largely upon whether he acted in bad faith, an issue left pending in the trial court and not part of this appeal. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004) (Public officials are entitled to official immunity from liability in performing (1) discretionary duties (2) in good faith (3) within the scope of their authority.) If Sehauer did not act within the course and scope of his employment with the City, then, as a matter of law, the City is not vicariously liable for his acts, appellant cannot allege a claim against the City, and Sehauer cannot claim official immunity. See id. In either instance, whether Sehauer acted within the course and scope of his employment with the City or not, appellant has no claim against the City. The trial court, therefore, properly granted summary judgment to the City. Schauer’s employment status at the time of the incident remains an issue for determination in the case against Schauer in the trial court.

We conclude that the City’s governmental immunity is not waived for appellant’s assault, negligence, and trespass to the person claims, and that, accordingly, the City is entitled to summary judgment on those claims.

We hold that the trial court did not err in granting summary judgment to the City on appellant’s assault and negligence claims for acts committed by Schauer in his official capacity.

Continuance

In his second point of error, appellant contends that the trial court erred by granting summary judgment to the City because appellant was denied an opportunity to conduct sufficient discovery. Specifically, appellant contends that it was — and still is — “factually unclear” just what Schauer’s “role” or capacity was at the time of the incidents that constitute the basis of the underlying claim, and that, consequently, neither official immunity nor sovereign immunity “can attach until such a finding is rendered.” Appellant further contends that the trial court erred by allowing the City “to arbitrarily enter and exit this matter” before appellant had adequate time to conduct discovery with respect to the issue of whether or not Schauer was entitled to official immunity.

We construe appellant’s point of error to be a complaint that the trial court denied appellant’s motion for continuance. The motion was not supported by an affidavit. Rule 251 provides that a continuance shall not be granted “except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex.R. Civ. P. 251. General allegations in the motion are not sufficient; the motion or the affidavit must state specific reasons for the request. See Blake v. Lewis, 886 S.W.2d 404, 409 (Tex.App.Houston [1st Dist.] 1994, no writ). Granting or denying a motion for continuance is within the sound discretion of the trial court. Id. If a motion for continuance is not verified or supported by affidavit, the appellate court will presume that the trial court did not abuse its discretion in denying the motion. Southwest Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 498 (Tex.App.-Fort Worth 1999, pet. denied).

In this case, appellant did not support his motion for continuance with an affidavit. Therefore, we presume that the trial court did not abuse its discretion in denying the motion. Accordingly, we overrule appellant’s second point of error.

Abatement

In his third point of error, appellant contends that the trial court erred by refusing to grant appellant’s motion to abate the City’s summary judgment. In the underlying action, appellant filed a “motion to abate” wherein he requested that the trial court:

abate all rulings regarding sovereign immunity/Plea to the Jurisdiction issues regarding the City of Alvin until the fact issue regarding the capacity in which Defendant Schauer acted on March 22, 2000 can be determined by the trier of fact. The City of Alvin retains the right to a plea to the jurisdiction, even after judgment, [citation omitted]. Hence, the City of Alvin is not prejudiced by such an order by this Court.

Under these circumstances, however, a motion to abate is not a proper procedural tool. A motion to abate is used to challenge the plaintiffs pleadings by alleging facts outside the pleadings that prove the suit cannot go forward in its present condition. Tex. Highway Dept. v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967); Truong v. City of Houston, 99 S.W.3d 204, 216 (Tex.App.-Houston [1st Dist.] 2002, no pet.). In the motion to abate, the defendant must (1) identify any impediment to the continuation of the suit, (2) identify an effective cure, and (3) ask the court to abate the suit until the defect is corrected. Truong, 99 S.W.3d at 216. In this case, the existence of a “fact issue” regarding Schauer’s capacity at the time of the underlying incident is not an impediment to the continuation of the suit since the City is immune as a matter of law from liability for all claims asserted against Schauer in his official capacity, and the suit continues below on any claims against Schauer in his individual capacity or against Garden Gate Apartments. Therefore, we hold that the trial court did not err in denying appellant’s “motion to abate.” Accordingly, we overrule appellant’s third point of error.

Conclusion

We affirm the judgment of the trial court.

      . In Graham, the United States Supreme Court noted that, "[i]n many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. ‘The course of proceedings’ in such cases typically will indicate the nature of the liability sought to be imposed.” 473 U.S. at n. 14, 167, 105 S.Ct. at 3106 (citing Brandon v. Holt, 469 U.S. 464, 469, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985)). See also Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex.App.-Corpus Christi 2002, no pet.) (in action against county and sheriff wherein Ferguson failed to specify the capacity in which the sheriff was sued, the court looked at the "course of the proceedings” to determine the nature of the liability the plaintiff sought to impose).

      . Unless a distinct cause of action is asserted against the entity itself, the entity is not even a party to a personal-capacity lawsuit and has no opportunity to present a defense. Graham, 473 U.S. at 168, 105 S.Ct. at 3106. Here, appellant alleged a distinct cause of action against the entity, as he claimed that Schauer committed torts as an agent of the City.

      . In Brandon, the Supreme Court considered whether a damages judgment against the director of the city of Memphis's police department in his official capacity under 42 U.S.C. § 1983 was payable by the city of Memphis when the city was not named as a defendant in the underlying case. 469 U.S. at 464-65, 469, 105 S.Ct. at 874-75. The caption and the body of the complaint named as defendant, "E. Winslow Chapman, Director of Police.” Id. n. 11, 469 U.S. at 469, 105 S.Ct. at 876. The Supreme Court determined that it was "abundantly clear” that the action against Chapman was brought in his official capacity, and only that capacity. Id. 469 U.S. at 469, 105 S.Ct. at 876. Moreover, the Supreme Court regarded the record as plainly identifying the petitioners’ claim as one that was asserted against the office of "Director of Police, City of Memphis,” rather than against the person who held that office when the claim arose. Id. 469 U.S. at 471, 105 S.Ct. at 877-78. The Supreme Court concluded that petitioners were claiming a right to recover damages from the city, and, thus, that petitioners were entitled to amend their pleadings to conform to the proof and to the District Court's findings of fact by asserting their claims against Chapman in his official capacity. Id.

      . In Alcorn v. Vaksman, a University of Houston student dismissed from a graduate program sued members of the board of regents of the university, the president of the university, and the dean, department chair, and members of the graduate committee that expelled him. 877 S.W.2d 390, 393 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (en banc). Specifically, Vaksman sued the regents and the president of the university in their official capacities, and the dean, department chair, and members of the graduate committee both individually and in their official capacities. Id. With respect to Vaksman’s breach of contract claims, we determined that Vaksman had a contract with the State, in the form of the University of Houston’s catalog. Id. at 403. Thus, although Vaksman did not name the State as a defendant, we held that his suit was against the State. Id. ("When, as here, State employees are sued in their official capacities for acts they performed within the scope of their authority, the suit is against the State.”) See also Battin v. Samaniego, 23 S.W.3d 183, 186 (Tex.App.-El Paso 2000, pet. denied) (In suit against El Paso County and El Paso County Sheriff in his official capacity, "the Sheriff sued in his official capacity is not an entity line distinct from the County. Rather, this is just another way of pleading a suit against the County, for which the Sheriff serves as agent.”)

      . During the summary judgment hearing, appellant admitted that he had sued "the officer” [Schauer] in his official capacity.

      . Moreover, the City filed its: (1) original answer, (2) motion for summary judgment and alternative plea to the jurisdiction, (3) supplement to its motion for summary judgment and alternative plea to the jurisdiction, (4) opposition to appellant’s motion to strike the City's appearance, (5) opposition to appellant’s objections to the City’s motion for summary judgment and alternative plea to the jurisdiction, (6) reply to plaintiff’s response to the City’s motion for summary judgment and alternative plea to the jurisdiction, (7) opposition to appellant’s motion for continuance and alternative motion to abate, and (8) motion for severance. Rule 60 of the Texas Rules of Civil Procedure provides that “[a]ny party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.” Tex.R. Civ. P. 60. Under rule 60, an entity has the right to intervene if it could have brought the same action, or any part thereof, in its own name, or if the action had been brought against it, it would be able to defeat recovery, or some part thereof. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990) (citations omitted); Houston Lighting & Power Co. v. City of San Antonio, 896 S.W.2d 366, 372 (Tex.App.-Houston [1st Dist.] 1995, writ dism'd w.o.j.) An intervenor is not required to secure the court's permission to intervene; the party who opposed the intervention has the burden to challenge it by a motion to strike. Guaranty, 793 S.W.2d at 657. In the underlying case, the trial court denied appellant’s motion to strike the City’s answer and summary judgment motion. On appeal, however, appellant did not challenge the trial court’s denial of his motion to strike. The trial court granted the City’s summary judgment motion, pointing out in its order that the City was "sued through its police officerf, Schauer], in his official capacity.” Under these facts, we conclude that the City properly intervened.

      .The Act defines an "employee” as:
      a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
      Tex. Civ. Prac. & Rem.Code Ann. § 101.001(2) (Vernon Supp.2004).

      . In his petition, appellant contends that Schauer "caused injury by a condition or use of tangible personal or real property of the [City].” Indulging every reasonable inference in appellant's favor, we infer that appellant refers to Schauer's alleged act of slamming appellant against a City police car. Slamming appellant against a City police car is an intentional rather than negligent act, and thus does not fall within the waiver of sovereign immunity. See Petta, 44 S.W.3d at 580 (ignoring police procedure by continuing a high speed pursuit and ignoring an order not to shoot at appellant were intentional rather than negligent acts).

      . Where the essence a claim under the Act arises from an intentional tort, allegations of negligence are insufficient to avoid the section 101.057 exception to liability. Holland, 41 F.Supp.2d at 713 (holding plaintiff’s claims that fatal gunshot victim’s injuries were caused by officer’s negligent use of tangible personal property — his service revolver — were intentional tort claims, "regardless of the language used.”) Judge Crone adjudged, ”[t]he tort about which the plaintiffs complain is, in essence, assault and battery, and their allegations of negligence are not sufficient to avoid the intentional torts exception to the TTCA.” Id.

      . Even if the City is immune from liability for Schauer’s actions in his official capacity, however, Schauer himself can be held liable in his individual capacity for violations of law committed while performing putatively official acts unless he proves that he is entitled to official immunity for those acts. See Graham, 473 U.S. at 165, 105 S.Ct. at 3105. Official immunity is an affirmative defense; therefore, the burden is on the defendant to establish all elements of the defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). Public officials are entitled to official immunity from liability in performing (1) discretionary duties (2) in good faith (3) within the scope of their authority. Ballantyne, 144 S.W.3d at 424; Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex.1994). Public officials act within the scope of their authority if they are discharging the duties generally assigned to them. Chambers, 883 S.W.2d at 651. If an action involves personal deliberation, decision and judgment, it is discretionary for purposes of official immunity. Id. Finally, an official acts in good faith if "a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred.” Ballantyne, 144 S.w.3d at 426; Chambers, 883 S.W.2d at 656-57. " 'Thus qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.’ ” Chambers, 883 S.W.2d at 656 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)). Schauer pled official immunity as an affirmative defense, but he has not moved for summary judgment on this issue and is not a party to this appeal; we, therefore, do not decide it.


author: EVELYN V. KEYES, Justice.

text:
    WOODSIDE ASSURANCE, INC., Appellant, v. N.K. RESOURCES, INC., Appellee.
    No. 01-04-00006-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 30, 2005.

      Gregory Wayne Marcum, Houston, TX, for Appellant.
    Mark K. Knop, Houston, TX, for Appel-lee.

      Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Woodside Assurance, Inc. (Woodside), appeals from the trial court’s judgment that awarded excess cash proceeds from a tax foreclosure sale to appel-lee, N.K. Resources, Inc. (NKR). In three issues on appeal, Woodside argues that it was entitled to the excess proceeds because (1) it had a valid and higher priority claim to the excess proceeds than NKR; (2) NKR manipulated the tax foreclosure process; and (3) the statute of limitations did not bar its claims. We affirm.

Background

On May 31, 2001, various taxing units filed suit against Lloyd Gibbs Jr. and Woodside to enforce tax liens on Gibbs’s property at 3230 W. Fuqua Street, Houston, Texas 77045. The trial court rendered a final judgment on September 10, 2002, ordering that the property be sold at auction and that the proceeds be used to pay off the outstanding tax liens. The final judgment provided,

[A]ny excess in the proceeds of sale and above the amount necessary to defray the cost of suit, sale, other expenses made chargeable in this suit against such proceeds and to fully discharge the judgments against said property, shall be paid to the clerk of this Court and be retained by said clerk for disposition to any parties legally entitled thereto in accordance with the terms and provisions of the Texas Property Tax Code.

A few days before the foreclosure auction, Gibbs sold the property to NKR. On January 7, 2003, Nanik Bhagia, a co-owner of NKR, purchased the property for $81,500 at the foreclosure auction. After all expenses were paid, $63,000 in excess cash proceeds was deposited in the trial court’s registry.

On March 7, 2003, NKR, as a former owner of the property, filed a claim to withdraw the excess proceeds from the registry of the trial court. On May 7, 2003, Woodside filed a petition to withdraw the excess proceeds. To support its entitlement to the excess proceeds, Woodside relied on a deed of trust that it had acquired from J-Hawk Corporation (J-Hawk). J-Hawk had previously received a promissory note from Gibbs that was secured by a deed of trust on the subject property. The promissory note had a final maturity date of March 1, 1995. On October 19,1994, J-Hawk transferred its interest in the note and deed of trust to Wood-side. By order dated December 4, 2003, the trial court awarded the excess proceeds to NKR. Woodside appeals from this order.

Analysis

Standard of Review

The issue presented requires a review of the trial court’s interpretation and application of the Texas Property Tax Code. Statutory interpretation presents a question of law subject to de novo review. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997). A trial court has no discretion when evaluating a question of law. See Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex.1996); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). We conduct an independent review and evaluate the statute to determine its meaning. See Lozano v. Lozano, 975 S.W.2d 63, 66 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).

Statute of Limitations

In its first issue on appeal, Woodside argues that the trial court should have awarded it the excess proceeds because it had a higher priority lien than NKR.

Chapter 34 of the Property Tax Code contains the procedures for tax sales and redemptions. See Tex. Tax Code Ann. §§ 34.01-.23 (Vernon 2001 & Supp.2004-2005). Proceeds of a tax sale are applied first to costs, fees and commissions associated with the tax suit and the tax sale, then to taxes, penalties, and interest and other expenses and amounts awarded under the judgment. Id. § 34.02 (Vernon Supp.2004-2005). Excess proceeds are paid to the clerk of the court issuing the warrant or order of sale. See id. § 34.02(d). The clerk must keep the proceeds for two years. Id. § 34.03(a)(2) (Vernon 2001). A person may file a petition setting forth a claim to the excess proceeds. Id. § 34.04(a) (Vernon Supp. 2004-2005). The petition must be filed before the second anniversary of the date of the sale of the property. Id. If no claimant establishes entitlement to the proceeds within the period provided by section 34.03(a), that is, two years from the date of the sale, the clerk must distribute the excess proceeds to the taxing units that participated in the sale. Id. § 34.03(b).

Section 34.04 provides that the trial court must order that the excess proceeds be paid according to the following priorities to each party that establishes its claim to the proceeds:

(1) to the tax sale purchaser if the tax sale has been adjudged to be void and the purchaser has prevailed in an action against the taxing units under Section 34.07(d) by judgment;
(2) to a taxing unit for any taxes, penalties, or interest that have become due or delinquent on the subject property subsequent to the date of the judgment or that were omitted from the judgment by accident or mistake;
(3) to any other lienholder, consensual or otherwise, for the amount due under a lien, in accordance with the priorities established by applicable law;
(4) to a taxing unit for any unpaid taxes, penalties, interest, or other amounts adjudged due under the judgment that were not satisfied from the proceeds from the tax sale; and
(5) to each former owner of the property, as the interest of each may appear.

Id. § 34.04.

NKR argued at the trial court and argues on appeal that Woodside’s hen, on which it relied to recover the excess proceeds, is void pursuant to section 16.035(d) of the Texas Civil Practice and Remedies Code. See Tex. Crv. PRAC. & Rem.Code Ann. § 16.035(d) (Vernon 2002). Section 16.035 provides,

(a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.
(b) A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.
(c) The running of the statute of limitations is not suspended against a bona fide purchaser for value, a lienholder, or a lessee who has no notice or knowledge of the suspension of the limitations period and who acquires an interest in the property when a cause of action on an outstanding real property lien has accrued for more than four years, except as provided by:
(1) Section 16.062, providing for suspension in the event of death; or
(2) Section 16.036, providing for recorded extensions of real property liens.
(d) On the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void.
(g) In this section, “real property lien” means:
(1) a superior title retained by a vendor in a deed of conveyance or a purchase money note; or
(2) a vendor’s lien, a mortgage, a deed of trust, a voluntary mechanic’s lien, or a voluntary materialman’s lien on real estate, securing a note or other written obligation.

Id. § 16.035(a)-(d), (g).

When there is no recorded renewal or extension, the maturity date stated in the original instrument is conclusive evidence of the maturity date of the debt. Id. § 16.036(d) (Vernon 2002). Four years from that date, it is conclusively presumed that the lien debt is paid. See The Cadle Co. v. Butler, 951 S.W.2d 901, 909 (Tex.App.-Corpus Christi 1997, no pet.). The effect of such a conclusive presumption of payment, like the effect of actual payment, is to terminate the superior title retained by the vendor and, consequently, to terminate all remedies for the enforcement of such superior title. Yates v. Darby, 133 Tex. 593, 131 S.W.2d 95, 99 (1939). A bona fide third person is entitled to the statutory presumption that the debt was paid and that the lien became void and ceased to exist. Mercer v. Daoran Corp., 676 S.W.2d 580, 582 (Tex.1984); Yates, 131 S.W.2d at 99.

NKR argues that the deed of trust, on which Woodside relied for its entitlement to the excess proceeds, matured on March 1, 1995. Thus, pursuant to section 16.035(d), the lien on the deed of trust became void on March 1, 1999. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.035(d). We agree.

Woodside could recover on its real property hen no later than four years after the cause of action accrued. Id. Here, the cause of action accrued on the note’s maturity date, March 1, 1995. See The Cadle Co., 951 S.W.2d at 909. Four years after the cause of action accrued, the real property hen became void. See Tex. Crv. PRAC. & Rem.Code Ann. § 16.035(d). By failing to bring suit on its real property hen within four years of the accrual of its cause of action, Woodside lost all remedies for the enforcement of its hen. See The Cadle Co., 951 S.W.2d at 909. Accordingly, we conclude that Woodside’s hen became void on March 1, 1999. Without a valid hen to support its motion to withdraw, Woodside had no entitlement to the excess proceeds.

Woodside responds that NKR cannot rely on the statute of hmitations because NKR was not in privity with the debtor, Gibbs. Woodside reasons that Bhagia bought the property and that only he should have been allowed to cohect the excess proceeds according to the Code’s priority schemes. We disagree.

First, NKR was in privity with Gibbs. NKR bought the property from Gibbs prior to the tax foreclosure sale. Second, Bhagia did not qualify to recover any of the excess proceeds pursuant to the priority rules in the Property Tax Code. See Tex. Tax Code Ann. § 34.04(c)(l)-(5). Rather, under the present facts, only the former owners of the property—NKR or Gibbs-—had the potential right to recover the excess proceeds. Id. § 34.04(c)(5).

Woodside next argues that the debt is not destroyed; only an action to recover the debt is barred by limitations. Wood-side relies on Central National Bank v. Latham & Co., 22 S.W.2d 765, 768 (Tex.Civ.App.-Waco 1929, writ ref'd) and Gallaher v. Americana-Amicable Life Insurance Co., 462 S.W.2d 626, 628 (Tex.Civ.App.-Waco 1971, writ ref'd n.r.e.). The Gallaher Court merely repeats the proposition stated in Latham, that is,

The fact that an action for the recovery of a debt is barred by the statute of limitations does not destroy the debt. The bar affects the remedy only. The right of the creditor to receive payment continues after the bar, and will support a new promise of payment or justify the sale of pledged property by the pledgee under power either express or implied, and the application of the proceeds of such sale to the discharge of such debt. In such cases the debtor cannot enjoin the sale without tendering payment of the debt, notwithstanding such bar.

Latham, 22 S.W.2d at 768.

Although the debt may not be destroyed, Latham makes clear that for the creditor to receive payment, the debtor would have to make a new promise. See id. This principle is also known as a moral obligation. See Machac v. Hajek, 437 S.W.2d 325, 328 (Tex.Civ.App.-Corpus Christi 1968, writ ref'd n.r.e.). In Machac, the court of appeals stated,

[T]he conclusive presumption of payment provided by the statute ... is but a fiction; that if the debt is in fact unpaid there is a moral obligation which lasts until the end of time; that the nature of an unpaid debt for the purchase price of land is not changed by the statute of limitations; that although the debt is unenforceable against the debt- or’s wishes or as a remedy, the debtor may, if he chooses, acknowledge the same and waive the statutory bar to its enforcement.

Id.

As discussed in Machac, after the statute of limitations passes on a lien, the debt remains as only a moral obligation even though there is no remedy for enforcement. See id. Whether NKR may have a moral obligation to repay Woodside, however, is irrelevant to the issue before this Court because the Property Tax Code sets out the procedure for entitlement to excess proceeds. Because we have concluded that Woodside does not have a valid lien, the trial court properly awarded the entirety of the excess proceeds to NKR.

We overrule Woodside’s first issue on appeal.

Foreclosure Process

In its second issue on appeal, Woodside argues that the trial court’s order should be reversed because NKR manipulated the tax foreclosure process. Specifically, Woodside asserts that NKR manipulated the tax foreclosure process by purchasing the property three days before the auction and that Bhagia overpaid the tax liability because he could ensure that NKR would recoup the excess proceeds.

Woodside cites no authority for the proposition that NKR manipulated the tax foreclosure process. We note that nothing in the Property Tax Code prevents a third party from buying the subject property prior to the foreclosure sale. Also, Bha-gia, in his individual capacity, was the winning bidder at auction.

Woodside also asserts that NKR’s actions allowed it to bypass the requirements in section 34.04(f) to recover excess proceeds. See Tex. Tax Code Ann. § 34.04(f) (Vernon Supp.2004-2005). Section 34.04(f) provides the necessary steps to obtain an assignment of an owner’s claim to excess proceeds. See id. Although Woodside is correct that NKR’s purchase of the property before foreclosure allowed it to avoid section 34.04(f), which governs assignments after foreclosure, we are not aware of any authority that precluded NKR from purchasing the property, or the owner from selling the property, prior to the imminent foreclosure.

We overrule Woodside’s second issue on appeal.

Application of Limitations Defense

In his third issue on appeal, Woodside argues that NKR’s limitations defense must fail because Woodside was not seeking to recover or to foreclose on real property. Woodside acknowledges that it sought neither to enforce its lien nor to foreclose and to satisfy its debt by power of sale. Woodside contends that, because it sought to recover cash proceeds, which are not considered real property, NKR’s limitations defense did not apply. We disagree.

Here, Woodside had a promissory note secured by a deed of trust. Pursuant to section 16.035(g)(2), a real property lien includes a deed of trust. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.035(g)(2) (Vernon 2002). As we stated in our analysis in Woodside’s first issue on appeal, once the statute of limitations passed on Woodside’s real property lien, all remedies for enforcement of the hen were lost. See The Cadle Co., 951 S.W.2d at 909. With no remedy for enforcement, Woodside could not recover the excess proceeds.

We overrule Woodside’s third issue on appeal.

Conclusion

We affirm the judgment of the trial court and deny all outstanding motions.

      .Houston Independent School District, City of Houston, Harris County, Harris County Education Department, Port of Houston of Harris County Authority, Harris County Flood Control District, Harris County Hospital District, and the Houston Community College System.

      . Gibbs failed to appear or to answer.

      . The taxing units filed suit against Woodside in rem only. Woodside failed to appear or to answer.


author: Justice ROSS.

text:
    Jimmy Lee NASH, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00059-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted May 20, 2005.
    Decided July 11, 2005.
    Discretionary Review Refused January 25, 2006.

      Jeff Harrelson, Harrelson, Moore, Giles LLP, Texarkana, for appellant.
    James H. Elliott, Asst. Dist. Atty., Tex-arkana, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

As we stated in our first opinion in this case, the surveillance videotape of May 31, 2001, shows Jimmy Lee Nash in a Texar-kana convenience store, standing across the counter from Joanna Christensen (the clerk on duty that night), then brandishing something in his right hand, clambering over the counter, and ordering Christensen to open the cash register drawer. She complied, and Nash took approximately $47.00 from the register.

After a brief trial, a Bowie County jury convicted Nash of aggravated robbery and he was sentenced to forty years’ imprisonment. In his initial appeal, Nash v. State, 115 S.W.3d 136, 141 (Tex.App.-Texarkana 2003, no pet.), we concluded the trial court erred by failing on the evidence elicited in that trial to charge the jury on the lesser included offense of robbery because there was evidence that the jury could have taken to show that Nash did not use a deadly weapon. On remand, Nash was retried, and for a second time was convicted of aggravated robbery and again sentenced to forty years’ imprisonment.

On appeal, Nash contends the evidence was insufficient to show he either used or exhibited any item that could be found to be a deadly weapon, that the trial court erred by preventing counsel from making certain arguments at punishment, that the court erred by fading to grant his motion to quash the indictment, and that the court should have granted Nash’s motion to appoint new counsel.

Nash committed aggravated robbery if he committed “robbery as defined in Section 29.02, and he ... use[d] or exhibit[ed] a deadly weapon-” See Tex. Pen.Code Ann. § 29.03(a) (Vernon 2003). A “deadly weapon” is:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Pen.Code Ann. § 1.07(17) (Vernon Supp.2004-2005).

Christensen testified Nash used an ice pick in the robbery. We have carefully and repeatedly reviewed the store videotape, which the State argues shows Nash holding a weapon. As we stated in our first opinion, the videotape does not reveal a weapon; certainly not conclusively. It is apparent Nash had something in his right hand, but what it was cannot be discerned — and what is visible does not appear to be metallic or a weapon. While the videotape’s lack of a clearly visible weapon does not demonstrate that no weapon existed, it is some evidence that there was no weapon or that whatever Nash had in his hand was, due to its type or size, not deadly.

In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004).

Nash focuses his argument on the adequacy of the proof that he used a “deadly weapon” in the course of the robbery and on the question of whether the evidence shows he used or exhibited the weapon during the course of the robbery.

Christensen testified she saw a pointed piece of metal in Nash’s hand; that it appeared to be a metal rod with a sharpened end that looked like an ice pick; that the metal part of the item was a minimum of five inches long; that Nash came over the counter, ordered her to open the register, put the tip against her body, and threatened her; and that she was afraid for her life.

Steve Shelley, the investigating officer, testified that such an item could indeed cause death or serious bodily injury and that in his opinion it was a deadly weapon. Though not clearly revealing a weapon, the videotape corroborates most of Christensen’s testimony and clearly demonstrates Nash’s proximity to Christensen, his threatening behavior toward her, and Christensen’s fearful reactions.

As we pointed out in our opinion in the first appeal, several factors are involved in determining whether an object is capable of causing death or serious bodily injury: (1) the physical proximity between the victim and the object, Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.App.1984) (op. on reh’g); (2) the threats or words used by the assailant, Williams v. State, 575 S.W.2d 30 (Tex.Crim.App. [Panel Op.] 1979); (3) the size and shape of the weapon, Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983); (4) the weapon’s ability to inflict death or serious bodily injury, id.; and (5) the manner in which the defendant used the weapon. Id. No single factor is determinative, and each case must be examined on its own facts. Brown v. State, 716 S.W.2d 939, 946-47 (Tex.Crim.App.1986). Either expert testimony or lay testimony may be sufficient to support a finding. English v. State, 647 S.W.2d 667, 668-69 (Tex.Crim.App.1983). The weapon was not in evidence in this case, but a jury may determine the weapon was capable of causing death or serious bodily injury even if it is not in evidence. See id. at 669.

There is evidence that the object was placed against the victim and that Nash threatened to kill her, as well as testimony about the size and shape of the weapon, its ability to inflict harm or death, and the threatening manner in which it was used. The jury’s duty is to weigh the evidence and determine the truth. The evidence set out above is both legally and factually sufficient to allow a jury to conclude the item was a deadly weapon, and also to show that the manner of its use could result in serious bodily injury. The evidence to the contrary is not so strong as to require us to make a different determination. See Charleston v. State, 33 S.W.3d 96, 100 (Tex.App.-Texarkana 2000, pet. ref'd).

Nash also complains because counsel was not permitted to argue the application of the parole law. The record shows that Nash asked to read and explain a portion of the statutorily required parole information charge to the jury. That charge went to the jury in its entirety. Defense counsel wanted to read the specific portion that stated:

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.

Counsel stated that he wished to use this as a basis to inform the jury specifically that Nash would have to serve one half of any sentence the jury gave Nash, and that he was not eligible for parole for at least half of the time assessed.

Although counsel’s statement of the law is correct, and although it was given to the jury in written form in the charge, Tex. Code Ceim. Peoc. Ann. art. 37.07 (Vernon Supp.2004-2005), provides explicitly (after telling the jurors how to apply the parole law) that the jury cannot consider the manner “in which the parole law may be applied to this particular defendant.”

To allow counsel to argue as requested would ask the jury to specifically consider the law as to this particular defendant, which is by statute improper. We cannot conclude that the trial court erred by restricting final argument in this manner.

Nash next contends the court erred by failing to grant his motion to quash the indictment. Nash asked the trial court to quash the indictment because in this Court’s prior opinion, we had stated not only that we were reversing because of a failure to provide a lesser included offense charge, but also because there was insufficient evidence to show the greater offense. This is incorrect. We clearly stated that the evidence was sufficient to support the jury’s determination in that conviction. Counsel’s argument is based on our statement that we did not reach some issues because we were reversing on other “grounds.” Although the term is plural, it is a term of art often used in the plural for a singular meaning. In our prior opinion, the actual ruling within the body of the opinion is entirely clear, and the contention that the indictment should have been quashed because we had foreclosed a portion of the charge has no merit. The contention of error is overruled.

Nash finally contends the trial court erred because it did not make proper inquiry into an alleged conflict of interest between defendant and defense counsel, and because the defendant’s motion to appoint new counsel should have been granted. The record contains nothing that would support such an inquiry. It appears Nash had brought a grievance against trial counsel, but the grievance does not appear in the record, and counsel states in his brief that he did not receive the written grievance until two weeks after the trial was completed. In the absence of anything in the record to show such a conflict of interest, there is nothing to support this contention of error. The contention is overruled.

We affirm the judgment.