### IN THE TENTH COURT OF APPEALS
No. 10
- 16
- 00158
- CV
ALVIE ROBINSON , Appellant v. ALICIA SCOTT AND BRA NDEN MULLENS , Appellee s

From the 278th District Court Walker County, Texas Trial Court No. 25,737

MEMORANDUM OPINION
Alvie Robinson is a prison inmate. He sued Texas Department of Criminal Justice
Correctional O fficers Alicia Scott and Branden Mullens (officers) in their official and individual capacities under the Texas Theft Liability Act for damages arising from the alleged theft and conversion of his personal property when he was moved from one prison wing to anothe r. The officers filed a plea to the jurisdiction, and after a hearing, the trial court granted the plea to the jurisdiction . Because the officers were entitled to raise sovereign immunity, because Robinson’s claims were subject to the election ofRobinson v. Scott Page 2

remedie s provisi on of the Texas Tort Claims Act, and because an earlier ruling allegedly denying the motion by a different trial court judge did not bind a subsequent trial court judge under the doctrine of stare decisis to dismiss the officers’ plea to the jurisdiction, the
trial court’ s judgment is affirmed.
O FFICIAL I MMUNITY Robinson alleged in his petition the officers were charged with inventorying his property when he arrived at the new prison wing and committed theft and conversion
when th e property went missing. In his first issue, Robinson complains that the trial court erred in granting the officers’ plea to the jurisdiction because the officers were not entitled to official immunity

. Specifically, he asserts the officers ’ acts of inve ntorying his property were ministerial and thus, not subject to official immunity. But the officers did not claim official immunity in their plea to the jurisdiction. They claimed sovereign immunity. Robinson , however,
contends that because he did not n ame the State as a defendant and only the State is entitled to sovereign immunity , the officers raised only a claim of official immunity

. Robinson is incorrect. Generally, s overeign immunity bars suits against the S tate and its entities , and this immunity remains intact unless surrendered in express and unequivocal terms by the statute's clear and unambiguous waiver. 1 T EX

. G OV ' T C OD E A NN

. § 311.034 (West 2013 ) ;

1 Official immunity is an affirmative defense that protects government employees from personal liability. Univ. of Houston v. Clark , 38 S.W.3d 578, 580 (Tex. 2000).Robinson v. Scott Page 3

Prairie View A&M Univ. v. Chatha , 381 S.W.3d 500, 512 (Tex. 2012). A suit against a government employee in his official capacity is a suit against his government employer;

t herefore, an employee sued in his official capacity has the same governmental immunity, derivatively, as his government employer. Franka v. Velasquez , 332 S.W.3d 367, 382

- 83 (T ex. 2011). Robinson sued the officers in their official capacities; thus, they are entitled

to raise sovereign immunity , as they did

. They did not raise the affirmative defense of official immunity. Accordingly, Robinson’s first issue is overruled.
E LECTION OF R EMEDIES Next, Robinson asserts that his claims were not subject to the T exas Tort Claims
Act ’s election of remedies provision , specifically section 101.106(f), because he alleged
claim s under the T exas Theft Liability Act , and theft and conver sion are not intentional

torts. 2 A tort is a civil wrong for which a remedy may be obtained, usually in the form of damages. B LACK ’ S L AW D ICTIONARY 1496 (7th ed. 1999). Conversion and theft are torts.
See R ESTATEMENT (S ECOND ) OF T ORTS , § 222A 1979) ; Zap ata v. Ford Motor Credit Co. , 615 S.W.2d 198, 201 (Tex. 1981) (conversion); City of Houston v. Petroleum Traders Corp ., 261 S.W.3d 350, 361 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) (conversion

— intentional

2 Whether a tort is an intentional tort is only relevant to the T exas T ort Claims Act’s waiver of immunity. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 101.057 ( West 2011 ) (chapter does not apply to intentional torts). A plaintiff’s allegation of an intentional tort does not affect the application of section 101.106. See Franka v. Velasquez , 332 S.W.3d 367, 37 5 (Tex. 2011) (“...any tort claim aga inst the government is brought ‘ under’ the Act for purposes of section 101.106, even if the Act does not waive immunity.”).Robinson v. Scott Page 4

tort); Minix v. Gonzales , 162 S.W.3d 635, 639 (Tex. App.

— Houston [14th Dist.] 2005 , no pet. )

. Section 101.106(f) protects employees of governmental units from tort suits against them in their individual capacities that could have been brought under the TTCA against
the governmental unit

. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 101.106(f) (West 2011 )

. A tort claim may be "brought under" the TTCA regardless of whether the TTCA waives immunity for that claim. Tex. Adjutant General's Office v. Ngakoue , 408 S.W.3d 350, 356 n.5 (Tex. 2013) ; Franka v. Velasquez , 332 S.W.3d 367, 37 9 (Tex. 2011)

. However, claims brought against the government pursuant to statutory waivers of immunity that exist apart from the TTCA are not "brought under" the TTCA. Ngakoue , 408 S.W.3d at 356 n.5; Mission Consol. Indep. S ch. Dist. v. Garcia , 253 S.W.3d 653, 659 (Tex. 2008)

. Robinson alleged Scott and Mullins failed to complete their inventories of Robinson’s property which ultimately resulted in him being deprived of his personal property. These actions or inactions, he contended, amounted to “theft and/or
conversion” in violation of the Texas Theft Liability Act. See T EX

. C IV

. P RAC

. & R EM

. C ODE
A NN . §§ 134.001

- .005 ( West 2011 ). However, t he TTLA does not waive sovereign immunity. Thus, Robinson tort claims against the officers “could have been brought” against the prison and are subject to section 101.106(f)

. 3 Accordingly , Robinson’s second issue is overruled.

3 Artful pleading will not change the tort nature of the claim

. Fink v. Anderson , 477 S.W.3d 460, 472 (Tex. App.

— Houston [1st Dist.] 2015, no pet.).Robinson v. Scott Page 5

S TARE D ECISIS In his third issue, Robinson contends the trial court shou ld have dismissed the State’s plea to the jurisdiction pursuant to the doctrine of stare decisis because the jurisdictional issues raised by the State had been previously denied by the trial court. Robinson asserts that the prior sitting trial court judge heard and denied, albeit orally, two previously filed motions for summary judgment raising sovereign immunity. 4
The doctrine of stare decisis governs only the determination of questions of law and its observance does not depend upon identity of parties. Swilley v. McCain , 374 S.W.2d 871, 875 (Tex. 1964)

. After a principle, rule , or propo sition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subseque nt suit between different parties. Id

. Robinson cites to nothing other than stare decisis for the proposition that one cannot move for summary judgment or dismissal of a claim after a previous motion has been
denied. Assuming without deciding that tria l courts are bound by their own
determinations of law under the doctrine of stare decisis , the trial court did not make a
determination of law in this case and the issue of sovereign immunity was not presented in a subsequent suit between different parties

. Thus, the doctrine of s tare decisis does not

4 The record before us contains only one motion for summary judgment filed by the officers, and the court’s docket sheet contains only one docket entry denying the officers’ motion for summary judgment.Robinson v. Scott Page 6

support Robinson’s proposition. Accordingly, the trial court was not bound by stare
decisis to deny the officers’ plea to the jurisdiction.
Robinson’s third issue is overruled.
C ONCLUSION Having overruled each of Robinson’s issues raised on appeal, we affirm the trial court’s judgment.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 28 , 20 18 [CV06]