Date: 02-25-2015

Case Style: Charles N. Draper v. Greg Guernsey, in his Capacity as Director of Planning and Development Watershed Protection Review Department; and City of Austin

Case Number: 03-14-00265-CV

Judge: Bob Pemberton

Court: Texas Court of Appeals, Third District on appeal from the 419th District Court of Travis County

Plaintiff's Attorney: Charles N. Draper, pro se

Defendant's Attorney: Sandra Kim for Greg Guernsey, in his Official Capacity as Director of Planning and Development Watershed Protection Review Department

Description: In a land-use dispute, Charles N. Draper, pro se, sued the City of Austin and one of
its employees, Greg Guernsey, “in [Guernsey’s] capacity as Director of Planning and Development
Watershed Protection Review Department.”1 The City and Guernsey filed a motion to dismiss all
claims against him, invoking subsections (a) and (e) of the Tort Claims Act’s election-of-remedies
provision, Section 101.106 of the Civil Practice and Remedies Code.2 The district court granted the
motion and dismissed “all claims and causes of action filed against [Guernsey] in this lawsuit.”
1 Appellees advise us that Guernsey’s correct job title is “Director of the Planning and
Development Review Department,” but the salient point is that he is an employee of the City.
2 Tex. Civ. Prac. & Rem. Code § 101.106(a), (e); see id. §§ 101.001-.109 (Texas Tort
Claims Act).
Draper appeals this interlocutory order of dismissal.3 While we affirm the district court’s order in
part, we must also reverse in part because it awards relief beyond that properly authorized under
subsections (a) or (e) as they apply to this case.
Draper’s claims for relief center on his efforts to develop a tract he owns in the
Oak Hill area of Southwest Austin and the City’s refusal thus far to recognize what Draper claims
are rights “grandfathered,” vis-a-vis Austin’s current development restrictions, by Chapters 43
and 245 of the Local Government Code.4 Draper seeks injunctive and declaratory relief to enforce
3 Our appellate jurisdiction generally extends only to review of final judgments, see
Texas Dep’t of Criminal Justice-Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 813
(Tex. 2012) (per curiam), but Draper’s appeal of this interlocutory order of dismissal is authorized
by paragraphs (5), (8), or both, of section 51.014, subsection (a), of the Civil Practice and Remedies
Code. Tex. Civ. Prac. & Rem. Code § 51.014(a)(5) (authorizing appeal of interlocutory order
denying “an assertion of immunity by an individual who is an officer or employee of . . . a political
subdivision of the state”), (8) (authorizing appeal of interlocutory order that grants or denies
jurisdictional challenge by a governmental unit); see Texas Dep’t of Aging & Disability Servs.
v. Cannon, ___ S.W.3d ___, No. 12-0830, 2015 Tex. LEXIS 2, at *5 (Tex. Jan. 9, 2015); Austin
State Hosp. v. Graham, 347 S.W.3d 298, 300-01 (Tex. 2011) (per curiam). Under either statutory
ground, furthermore, Draper’s appeal automatically stayed proceedings in the trial court, see
Tex. Civ. Prac. & Rem. Code § 51.014(b), providing him the relief he has requested through a
separate motion for stay. Accordingly, we dismiss Draper’s stay motion as moot.
Draper also seeks reversal of a second interlocutory order that denied him a summaryjudgment
motion on his claims and ruled adversely to him on various related evidentiary issues; in
fact, his appellate briefing focuses largely on this order and the perceived merits of his claims rather
than issues relevant to the application of subsections (a) or (e). We lack jurisdiction to award him
that relief in the context of this appeal. He also seeks “summary judgment” on appeal—i.e., reversal
of the district court’s orders—based on what he asserts is the untimeliness of appellees’ brief. We
deny the motion.
4 See Tex. Loc. Gov’t Code §§ 43.002 (grandfathering protections applicable in areas
annexed by a municipality), 245.001-.007 (grandfathering protections applicable to land-use
permitting by political subdivisions); see also Harper Park Two, LP v. City of Austin, 359 S.W.3d
247, 254-60 (Tex. App.—Austin 2011, pet. denied) (construing Chapter 245 and enforcing it against
the City).
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these asserted rights. As the appellees acknowledge, the Legislature has expressly waived the
City’s governmental immunity against Draper’s declaratory and injunctive claims to enforce
Chapter 245—in fact, it has provided that Chapter 245 “may be enforced only through mandamus
or declaratory or injunctive relief.”5 Additionally, fairly construing the substance of his pleadings,
Draper attempts to assert what are in the nature of “ultra-vires” claims seeking injunctive or
declaratory relief to restrain other alleged statutory violations by the City.6 We observe—as it will
become relevant to our analysis—that the proper defendant to an ultra-vires claim seeking to restrain
allegedly unlawful actions by the City would be Guernsey or some other appropriate City officer, in
his or her official capacity, not the City itself.7
Draper also seeks monetary damages—a total exceeding $10 million, in fact. His
specific theories include “fraudulent misrepresentation” by Guernsey and other City staff in their
decisions regarding Draper’s development rights. He also complains of the impending foreclosure
of his house due to his inability to develop his tract, not to mention purported threats, vandalism,
burglaries, and even the beating of his dogs by “opposing political interests” in retaliation for his
efforts to do so. Finally, Draper also complains of “perjury” and “breach of contract” by appellees’
counsel, citing what he terms “false statements” by counsel in seeking a continuance.
We derive our summary of Draper’s factual allegations from his live petition, construed
liberally and in favor of jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 227-28 (Tex. 2004).
5 Tex. Loc. Gov’t Code § 245.006 (emphasis added).
6 See City of El Paso v. Heinrich, 284 S.W.3d 366, 370-72 (Tex. 2009).
7 See id. at 372-73.
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The grounds for dismissal raised by appellees’ motion and made the basis for
the district court’s order were confined solely to subsections (a) and (e) of Section 101.106.
Subsection (a) provides:
The 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.8
Subsection (e), in turn, states:
If a suit is filed under this chapter against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a motion
by the governmental unit.9
The Texas Supreme Court has provided the following pertinent guidance for our
application of these provisions:
• Although both provisions refer to “a suit under this chapter,” “the propriety of dismissal must
be evaluated on a claim-by-claim basis to give effect to the statute.”10
• A claim “under this chapter” refers to one sounding in tort, regardless of whether or not the
plaintiff actually purports to assert it under the Tort Claims Act or could ultimately recover
via that statute.11
8 Tex. Civ. Prac. & Rem. Code § 101.106(a).
9 Id. § 101.106(e).
10 Cannon, 2015 Tex. LEXIS 2, at *11 n.10 (citing Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008)).
11 See id. at *9 (citing Franka v. Velasquez, 332 S.W.3d 367, 379-80 (Tex. 2011)).
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• However, claims that seek remedies independent of the Tort Claims Act are not
“under the Act” and are not subject to the above dismissal mechanisms.12 This is consistent
with Section 101.106’s role within the Act as a whole—as the supreme court has observed,
“[t]he Act . . . opens the door to governmental liability in certain tort actions, while
[Section 101.106] narrows that opening.”13
• The references to “employee” or “employees” in both subsections (a) and (e) denote persons
sued in their individual capacities—i.e., the plaintiff seeks to impose liability upon them
personally. Such a claim stands in contrast to one asserted against a governmental employee
in his or her official capacity, which in the context of tort or other damages claims is “in all
but name only” a claim seeking recovery from the governmental employer.14
The bulk of Draper’s arguments are either inconsistent with these holdings or simply inapposite
under them, focusing largely on disputing whether the City enjoys governmental immunity against
his claims or Guernsey official immunity against them. But appellees—in addition to urging that
we dismiss Draper’s pro se appeal based solely on technical violations of the briefing rules—also
overlook some of these important qualifications and limitations on subsections (a) and (e)’s
application, including the analytical significance of the distinction between claims asserted against
Guernsey in his individual versus official capacities.
The effect of subsection (e), as the supreme court has construed it, is merely that
Draper’s assertions of tort claims against the City—not his claims founded on immunity waivers
independent from the Tort Claims Act or other non-tort theories—require dismissal of those
same tort claims to the extent Draper asserts them against Guernsey individually. His misplaced
arguments about official immunity notwithstanding, it is unclear whether Draper’s tort claims
12 See id. at *10-11 & n.10, *14-15.
13 See id. at *17-18.
14 See Texas Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 356-57 (Tex. 2013).
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actually are intended to seek recovery from Guernsey individually, as opposed to a recovery from
the City based on Guernsey’s allegedly wrongful acts. Draper, again, purported to sue Guernsey “in
his capacity” as a City employee, suggesting an official-capacity suit, and his allegations complain
entirely of alleged acts or omissions by Guernsey while performing his job duties. But to the extent
Draper’s pleadings could be construed to assert his tort claims against Guernsey individually,
dismissal of those claims would clearly be mandated under subsection (e).
Similarly, subsection (a) means that the tort claims Draper has asserted against the
City “constitute[] an irrevocable election by [Draper] and immediately and forever bars any suit or
recovery by [him]” against Guernsey individually “regarding the same subject matter.” To the extent
the district court’s order refers to any claims of this sort that Draper has actually asserted or might
someday assert, it appropriately dismissed them.
The district court, however, dismissed “all claims and causes of action filed against
[Guernsey] in this lawsuit,” which would facially extend also to any claims Draper asserts against
Guernsey in his official capacity. Neither subsection (a) nor (e) authorizes this relief,15 but any
error would be harmless with respect to most of Draper’s claims, inasmuch as his assertion of the
same claim against both the City and Guernsey in his official capacity would generally amount
merely to a duplicative pleading for the same relief against the same defendant.16 However, this is
15 Cf. Tex. Civ. Prac. & Rem. Code § 101.106(f) (providing for substitution of governmental
entity for employee defendant under circumstances where claim is “considered to be against the
employee in the employee’s official capacity only”).
16 See Ngakoue, 408 S.W.3d at 356-57; cf. Texas Dep’t of State Health Servs. v. Balquinta,
429 S.W.3d 726, 750 (Tex. App.—Austin 2014, pet. filed) (suggesting for these reasons that any
error in failing to dismiss official-capacity defendant sued alongside governmental defendant is
harmless where Legislature has waived the government’s immunity).
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not true of Draper’s ultra-vires claims, which, while seeking to bind the City, must formally be
asserted against Guernsey in his official capacity rather than against the City itself.17 In purporting
to dismiss Draper’s ultra-vires claims—and in the absence of any other jurisdictional bar to these
claims demonstrated by the City or apparent from the record—the district court reversibly erred.

Outcome: Reversed

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