## In the Court of Appeals Second Appellate District of Texas at Fort Worth

______ _______ __ ______ ______ No. 02

- 19

- 00264

- CV

___________________________

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 18

- 3417

- 431

Before Sudderth , C.J.; Womack and Wallach, JJ. Memorandum Opini on Ju stice Wallach 

### P ATRICIA 

### A NN 

### B OGAN 

### , Appellant

V


### . D ENTON 

### C OUNTY 

### D ISTRICT 

### A TTORNEY 

### , D ENTON 

### C OUNTY 

### S HERIFF 

### ’ S 

### D EPARTMEN T 

### , C ITY OF 

### D ENTON 

### P OLICE 

### D EPARTMENT 

### , AND 

### C ITY OF 

### D ENTON 

### M AYOR 

### ’ S 

### O FFICE 

### , Appellees2 MEMORA NDUM OP IN ION
P atricia Ann Bogan appeals from the trial court ’ s grant of the pleas to the jurisdiction filed by Appellees the Denton County District Attorney (the Dist rict Attorney) , the Denton County Sheriff ’ s Department (th e Sher iff) , the City of Denton
P olice D ep artment (the Police) , and the City of Denton Mayor ’ s Office (the Mayor) (collectively Appellees) . Because Bogan does not challenge th e grounds on which the
trial court granted the pleas, we affirm. Background
In her “ 3rd Amen ded Supplemental Peti tion, R eq uest for Injunction, Request
for A dmissions, Request for Di s closure, ” B ogan ’s main comp laint appeared to be that
she had been subject ed to electronic sur veil lance for decades , beginning in the early 1990s and continuing t hroug h at least April 2018

. She did not make clear who was responsible for the surveillance. B ogan alleged that in June 1990, “ after leaving
Moore Business Fo rm s Denton Texas 1 after th e situ ation escalated with the [manager and the supervisor] r egard ing the two of them n ot want in g [her] to have the job , ” she began “ experiencing problems with libel on the job, with Electronic Surveillance during and after leaving Moore. ” She stated that s he h ad been told that the spouse of
Denton po li ce officer R oger White “wanted t o have the jo b. ” She alleged a number of complaints about forme r coworkers , neigh bors, a realtor, and a jailer with the

1 In an earlier filing, Bogan stated that she had been employed with Moore Business Forms from 19 82 to 1990.3 Denton Sher iff ’s department who she alleged once “ran [h er] down in the streets. ”
Sh e stated that she file d her complaint “ [d] ue to the nat ur e of the ongoing problem with the laser (coherent lights) and the attacks from the laser with excessive
radiation , ” which she alleged were causing her various health issu es . It is not clear from her petition what the las er is or who is responsibl e for i t. She made o ther allegations in her petition that are unclear and not clearly connect ed to actions of Appell ees. Under a section labeled “ C ause of Action, ” Bogan all eged per sonal injury resulting from electronic and dron e sur veillance and “ [o]n t he job ha rassment with [a]
laser. ” In one sentence, she stated that sovereign immunity had been waived under
Section 101.025 of the Texas Civil Practice and Remed ies Cod e . S ee T ex. Civ. Prac. &
Rem. Code Ann. § 10 1.025 (providing that “ [ s ] ov er eign immunity to suit is waived and abolished to the extent of liability created by this chapter ” )

. Each d efendant filed an answer , special exce p tions, affirmative de fenses, and a plea to th e ju risdiction. The District Attorney ’s plea to the jurisdiction assert ed that Bogan had failed to “ identify the state statutory basis upon w hich [ she] bases her
claims ” and “ does not explain how the c laim escapes governme ntal im mu nity from
suit. ” It poi nted out that to invoke a trial court ’s jurisdiction over a claim, a claimant

“ must plead a legal and factual cause of action within t he expressed terms of the
Texas Tort Claims Act or othe r sta tutory waiver of immu nity ” a nd argued that Bogan
had failed to all ege a valid cause of action under Texas Civil Practice and Remedies
Code Section 101.021( 2) , to “specifically ref erence the statut ory waiver of4 governmental immunity fro m suit, ” and to “ iden tify the recoverable damages f or which immunity is waived. ” S ee T ex . Civ

. Prac

. & Rem

. Code Ann. § 101.021( 2) ( providing that a governmental unit is liable for “ personal injury and death so caused by a condition or use of tangible personal or r eal p roperty if the govern mental un it would, were it a private person, be lia ble to the claimant according to Texas law ” )

. The Sheriff and the City of Denton (the City) , on behalf of the Mayor and the Police , filed plea s that were essentially identical to the District Attorney ’ s . The Sheriff further
asserted that it is a no n

- jura l entity that lacks the capacity to be sued , and t he City
made the same assertion on behalf of the Mayor an d the Police

. W hile Bogan filed
her thir d ame nded supplemental pet ition a ft er Appel lees filed their p leas to the jurisdiction, she did not fil e a se parate answer to the p leas. After a hearing, the trial cour t granted each plea to the jurisd iction in separate order s that dismissed Bogan ’ s claims with prejudice

. B ogan now appeals.
Discussion On appeal , Bogan brings two issues: (1) “ [th]e appelle e/ defe ndant continues to
refer to the original pe tition and not the 3rd amend ed supplemental petition in his judgment/decision, ” and (2) “ [a] present violatio n const it utes an o ngoing continuous

tort. ” In her framing of her second issue, she also sets out A r ticl e 18 A.10 7 of the
Texas Code of Criminal Procedure. See Tex. Code Crim . Pro c . Ann.

art. 18A.10 7 (setting out th e len gth of time for which a court m ay authorize an order for interception of wire, oral, or electronic communications ).5 In her arguments , B o gan asserts that the trial court “ erred in that he exclude d
the 3rd supplemental amended petition as a r easo n not to p roceed as requested i n

answe ri ng discovery or [t o] proceed with the case ” and by “ exclud [ ing] consideration
of amendment as to reflect o ng oing conti n uous tort violation of Electronic
Surveillance with assaults and the leth ality of the weapon being use d. ” She furt her
cha ll enges the City ’ s responses to her interrogatories as inadequate and argues that
various people , including a Denton police office r, had trespassed on her property
withou t probable cause

. Count ies and cit ies are e ntitled to government al immu ni ty and thus to immunity from suit. Harris County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004)

. “ The Texas Tort Claims Act pro vides a limi t ed wai ver of governmental imm unity if certain
conditions are met

. ” Id. However, n o w here in B ogan ’ s brief doe s she a rgue that she pled a valid waiver under the Texas Tort Claims Act or other statutory waiver of immunity other than to state that she “ file d a 3rd amended petition on Ju ne 13,
2019 with proper jurisdictional procedure and wa iver of immunity etc

. ” While she acknowledges that Appell ees “ objected due to a Lack of Jurisdiction [and] sovereign immunity , ” s he does not explain how her pleadings s ta t e a cl aim for whi ch Appellees ’ governmental immunity has been waived

. S he as serts that she finds it “ abs ur d that
law enforcement is being allowed to continue in tort; attacking [her] with a lethal nuclear weapon relating to medical malpractice, ” but it i s uncle ar how this assertion6 relates to her pleaded claims or who she all eges has been attacking her w ith a l et hal
weapon . To succeed on an appeal from a judgment or order granting a plea to the jurisdiction, an appellant must challenge each ground on whic h the a ppellee sought judgment and which may have su ppo rted the trial court ’ s judgme nt or o rd er. S.W. ex rel. A.W. v. Arlington Indep. Sch. Dist. , 435 S.W.3d 414, 419 (Tex. App.

— Fort Worth 2014, no pet.)

. If an unchallenged ground fully sup ports the comp l ained

- of ruling or judgment, but the appellant assigns no e rror to that ground, the n this co urt must accept the validity of that unchallenged ground, and , because the unchallenged ground fully supports the complained

- of judgment or order , we must affirm t h e judg ment or order

. Id

. ; see also Britton v. Tex

. De p ’ t o f Criminal Justice , 95 S .W.3d 6 76 , 681 (Tex. App.

— Houston [1st Dist.] 2002, no pet.) (holding that when a trial court grants , without specifying grou nds, a plea to the jurisdiction that is based o n multi ple grounds , and the appellant does not challeng e eac h ground, the court of a ppeals mu st af firm on the unchallenged ground )

. Bogan does not argue in her brief that her pleadings assert claims for which imm unity has been waived and that the entities she

su ed all had the capacity to be sued , and, as such , we must affirm the trial co urt ’ s granting of the p le a s to the jurisdiction. Bogan does argue in her brief that the trial court excluded her th ird amended supplemental petition and should have allowed her ti me to amend her petition

. As to her complaint a bout the exclusion of her amended pleading, t h e recor d does not7 support h er claim. Rather, the trial court specifically acknowledged her third amended supplemental petition at the hearing on the pleas to the jurisdiction

. As for the oppor tunity t o rep lead, the record does not show that Bogan
reque s te d and was denied the opportunity to file an amended pleading. We further
note that Bogan filed her third amended supplemental petition nearly a y ear after the
Di strict Atto rney filed its plea to the j urisd iction , ten months after the Sheriff file d its
p le a to the jurisdiction, and over a month after the City filed its plea to the jurisdiction. Bogan thus “ had the opportunity to, and did in fact, a mend [her ] plead ings in the trial court ” after Appellee s fil ed their plea s to the jurisdiction. See
Clint I ndep

. S ch

. D ist . v. Marquez , 487 S.W.3d 538, 559 (Tex. 2016)

. Finally, “ a pleader must be given an opportunity to amend in response to a plea

to t he jurisdic t ion on ly if it is pos sible to cure the plea ding defect

. ” Tex

. A & M Univ. Sys. v. Koseoglu , 233 S.W. 3d 835, 8 40 (Tex. 2007)

. From Bogan’s third amended supplemental petition, it did not appear that she had alleged facts indicating that her inj uries were caused by Appellees’ use of tangible persona l pro perty or by a condition
on A ppellees’ real property. See Tex

. C iv

. Prac

. & Rem

. Code Ann. § 101.021( 2)

. Instead, she complained about the acts of nonparties at a job she held decades befor e; electron ic su r veilla nce by an unspecified person or perso ns; and lasers of an unspecified type, used in an un spe cified wa y and by an unspecified person. She also complained about tampering with evidence by the Smith County District Attorney’s
offic e an d listed co mplai n ts she had filed with other law enforc em ent o r investigative8 agencies, including the FBI. B ogan d oe s not explain in her brie f how she could amend her petition to establish a waiver of immunity for the cl aims she asserted , either under Section 101.02 1(2) o r some other waiver of immuni ty
. Sh e does not argue that the trial court was incorrect t o conclud e that the Sheriff , the Police, and the Mayor lack the capacity to be su ed or explain how she could allege fac ts to show that they h ad suc h capacity. S e e De l gado v . River Oaks Police Dep ’ t , No. 02

- 15

- 00205

- CV, 2016 WL 6900900, at *1 (T ex. App.

— Fo rt Worth Nov. 23, 2016, no pet.) (mem. op.) (holding that the appellant had waived his complaint regarding the trial court ’ s finding
that the defendant police de partm e nt lac ked the capacity to be su ed an d waived his

com p laint that the trial cour t should ha ve afforded him the opportunity to amend his pleading )

. She does not contend that the jurisdictional bar to her claims arose from a
lack of factual allegations

— which she co uld fix w ith an amendme nt

— rath er than
from the nature of her claims. Se e Clint I ndep. S ch

. D ist

. , 487 S. W.3d at 559 ( holding
that where t he appellees suggested they could cure their pleading defects not by adding more juris dictional facts but by ch a nging the claims they brought , they were not entitled to a remand for an opportunity to a mend thei r pleadings). Accordingly,
she has not shown that she was entitled to the opportunity to again amend her pleadings.
W e overrule Bo g an ’ s two issues

.9 Co nclus i on We affirm the trial court ’ s o rders dismissing Bogan ’ s claims with prej udice

.

/s/ Mike Wallach Mike Wal lach Just ic e Delivered: December 31, 2019