IN THE

TENTH COURT OF APPEALS

No. 10-16-00158-CV

ALVIE ROBINSON,

Appellant

v.

ALICIA SCOTT AND BRANDEN MULLENS,

Appellees

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 Officers 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 another. 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 of 
Robinson v. Scott Page 2

remedies provision 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.

OFFICIAL IMMUNITY

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 the 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 inventorying 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 name 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, sovereign immunity bars suits against the State and its entities, and this 

immunity remains intact unless surrendered in express and unequivocal terms by the 

statute's clear and unambiguous waiver.1 TEX. GOV'T CODE ANN. § 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;

therefore, 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 

(Tex. 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.

ELECTION OF REMEDIES

Next, Robinson asserts that his claims were not subject to the Texas Tort Claims 

Act’s election of remedies provision, specifically section 101.106(f), because he alleged 

claims under the Texas Theft Liability Act, and theft and conversion are not intentional 

torts.2

A tort is a civil wrong for which a remedy may be obtained, usually in the form of 

damages. BLACK’S LAW DICTIONARY 1496 (7th ed. 1999). Conversion and theft are torts. 

See RESTATEMENT (SECOND) OF TORTS, § 222A 1979); Zapata 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 Texas Tort Claims Act’s waiver of immunity. 

TEX. CIV. PRAC. & REM. CODE ANN. § 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, 375 (Tex. 2011) (“...any tort claim against 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. TEX. CIV. PRAC. & REM. CODE ANN. § 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, 379 (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. Sch. 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 TEX. CIV. PRAC. & REM. CODE 

ANN. §§ 134.001-.005 (West 2011). However, the 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

STARE DECISIS

In his third issue, Robinson contends the trial court should 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 proposition 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 subsequent 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 trial 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 stare 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.

CONCLUSION

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, 2018

[CV06]