### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00303
- CV

Francine Lee Lankford and Frank T. Vickers , Appellant s

v. Salvador Abreo and Frank J. Dzienowski, Jr
. , Appellee s

FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY NO. 423
- 6129 , THE H ONORABLE J. D. LANGLEY , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Franci ne Lee Lank ford and Frank T. Vickers appeal the trial court ’ s order
gran ting a plea to the jurisdiction filed by Salvador Abreo and Frank J. Dzienowski , Jr., based on
the ele c tion

- of

- remedies provision of the Texas Tort Claims A ct (TTCA). See Tex. Civ. Prac. & Rem. Code § 101.106 . Because we agree tha t the c laims against Dzienows ki are barred by
S ection 10 1.106 , we will affirm the trial court ’ s order granting Dz ienow sk i ’ s pl e a to the jurisdiction. Because the statutory causes of action asserted against Abreo w ere not br ought

“ under ” the TTCA, as required for application of the election

- of

- remedies provision, we w ill
reverse the order granting Abreo ’ s plea to the juri sdiction and remand the suit against Abreo to
the tria l court for further proce eding s.

FACTUAL AND PROCEDURAL BACKGROUND
This suit arises out of the alleged conduct of Abreo, Dzienowski , and other
individuals an d entities relating to the sale of a h ou se Lankford owned in Elgin , T e xas (the2

Property) to satisfy a default judg ment obtained by Pacheco ’ s Fencing Company. In her petition , Lan kford alleged that Pacheco ’ s Fencing contacted Abreo, who was a Bast rop County co nstable,

to enforce a writ of exec ut io n on the Property. Lan kfor d alleged that the writ cam e into Abreo ’ s hand s on Feb ruary 20, 20 18 , bu t was never served and was returned to the court on February 23 , 2018. The reafter, a second writ of execution was issued , and although th e writ was retu rn ed to
the court on Jul y 19, 201 8 , and fi led and recorded, Lankford a l leged tha t it was never served on
her. Lankfor d alleged that a third writ of execution was issued and that it, too, was never served
on her , a lthough it “ appeared ” to have been filed w it h the co urt in Lee Coun ty.

Lan kford further al leged tha t despite the fact that she had never be en served w ith

a writ of execution, Abre o proceeded to levy on the Property , which was her declared homestead
p ro perty , and pu blished notice of a constable/s he ri ff ’ s public auction to take place on the fir st Tuesday in September 2018. According to Lankford, although the writ of execution permitted only a sheriff or constable to execut e it, Abre o “ delegat ed the sale of the property to an individual with no leg al a ut hority to con duct the sale. ” Thereaf ter, Lankfor d alleged, Abre o represented in a Sheriff ’ s Deed that he had con d ucted the auction on September 4, 2018 , at 10:00
a.m., a repres en tation Lankford alleged was fal se. Lankford alleged that Abreo failed to c omply
with his dut y to conduct the execution of the writ and subsequ ent sale of her pro perty in the manner speci fied by Section 34.066 of the Texas Civi l P ractice and Remedies Code and the
Texas Ru les of Civil Procedure regarding service of process and w ri ts of exec ution. As a result, Lankford alleg ed, s he suffered dama ges from losing the Prope rty.

In her petition , Lankford asserted causes of action against Abreo pursuant to
S ecti on s 7. 001, 34.066, and 12.002 of the Texas Civil P ractice and Remedies Co de

. See Tex.
Civ. P rac. & Rem. Code § § 7.001 ( pro viding that clerk, sheriff, or othe r officer who neglects or3

refuses to perfo rm dut ies required un der Texas Rules of Civ il Procedure or provi sion of C ivil
P rac tice and R emedies C ode deri ved from thos e rul es i s liable for ac tual damages in suit brough t
b y person injured by off ic er ’ s neg lect or refusal); 34.066 (providing that officer who sells property without g iving notice as required by Texas Rules of Civ il Proced ure or sells property in

mann er other than t ha t pres cribed by C ivil P ractice and R emedi es C ode C h apter 34 and T e xa s Rules of Ci v il Procedure shall be liable for actual damages sustained by injured party); 12.002 (prohibiting making, presentation , or use of docume nt or other record with knowledge t ha t
document or record is fraudulent court record or fraudulent lien o r cl aim against real property )

.

Vickers allege d a cause of action against Dzienowski , a deputy with the Bastrop
Cou nty Sheriff ’ s office, re l ated to the public sa le of the Property. Sp ec if ically , Vickers a lleged that on September 20, 2018, D zienow ski entered the Property and detained Vickers, who was

a rent er living t here

. Vickers alleged th at Dzien owski conducted a “ warrant c h eck ” on him without cause. According to Vickers ’ s allegat ion s in the petition, D zienow ski arrived at the
Pr operty in uniform , “ intendi ng f or Vickers to believe Dzien ow ski was acting under the authority
of the State of Texas, but with the actual true intent to run a personal er rand ” for a county
official. Vicker s a l leged that Dzienowski intimidated him into aba ndoning the Property a nd t hat,
in t he course of that intimidation, Dzienowski unlawfully detained him without his consent.
Vickers thus alleged a cause of action against Dzienow ski for false impr isonment.

A br eo and Dzienowski filed a joint plea to the j urisdiction arguing that the tri al court was required to dismiss Lankf ord ’ s and Vickers ’ s cla ims against them in accordance
with S ection 101.106 of the TTCA. See Tex. Civ. Prac. & Rem. Code § 101.106(f) (pr ov id ing
th at if suit is filed against govern menta l employee based on conduct within general sco pe of employee ’ s empl oyment and could have been brought “ under this c hap ter ” against govern mental4

un it, suit shall be dismissed on empl oyee ’ s motion unless plain ti ff amends, dismissing employee and naming gover nmental unit as defendant). Lankford and Vickers opp osed the plea to the jur isdiction and did not amend their petition to di smiss either Abreo or Dzienowski , both government employees, a nd name their govern me nt employer as the defenda nt

. Thus, Abreo and
Dz ienowski ar gued, the court was required to di smi ss t he claims against them. The trial cou rt
gr anted the plea as to both Abreo and D zienowski and dismissed the case against them with prejudice . The trial co ur t order ed that the case be severed and given a new cause number, making the judgment final and appe al a ble. 1 La nkford and Vickers perfected this appeal.

DISCUSSION The TTCA provides a limited waiver of immunity f or certain suits against governmental e nt ities and puts a cap on recovera b le damages

. See id. § 101.023 . After the
TTC A was enacted, however, plaintiffs often sought to avoid the TTCA ’ s damages cap or ot her

str ictures by suing governme ntal employees , because clai ms against the m were n ot alw ay s subject to the TTCA

. M i ssion Consol

. Indep. Sch. Dist. v. Garcia , 253 S. W.3d 653, 656 (Tex. 2008) . To preven t such c ircum vention, and to protect government employees, the Texas Legislature created an election

- of

- remedies provision. Id. As originall y en acted, S ection
1 01 .106 barred any action against government emplo yees a fter claims against the governme ntal

1 Although the n otice of appeal was filed before the severed case against Abreo and Dzienow ski wa s given a new cause number, the trial c ourt ’ s order was effecti ve to grant t he severan ce. See McRoberts v. Ryals , 863 S.W.2d 450, 452

- 53 (Tex. 1993) (order granting severance wit h judgment in cause ordered se vere d is effe ctive when signed without district clerk ’ s creation of s eparate physica l file with differ ent ca use number); Ar litt v. Eb eling , No. 03

- 1 8

- 00646

- CV, 2018 WL 6496714, at *3 (Tex. App.

— Austin Dec. 11, 2018, no pet.) (mem. op.) ( lack o f seve re d cause number on order does not affect its finality)

.5

unit were reduced to judgment or settled. 2 While employees were thus afforded some prot ect ion when claims against the governmental unit were re du ce d to judgment or settled, t here was nothing to prevent a plaintiff from pu r suing alternative the ories against both the employee and the governmental un it through trial or other final resolution. I d. In 2003, as part of its comprehensive tor t

- reform e ff or ts, the Texas Le gislature amended S ection 101.106

. Id. That

sec tion, enti tled “ Election of Reme dies , ” now pro vides, in pertinent part:

If a suit is filed against an employee of a governmental unit ba sed on conduct with in the general scope of th at em pl oy ee ’ 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 c apacity only. On the em plo yee ’ s motion , the suit against the employee sh all be dismissed unle ss the plaintiff files amended pleadings dismissing the empl o yee and naming the government al unit as defendant on or before the 30th day af ter the date the motion is fi led.

Te x. Civ. Pra c. & Rem. Code § 101.106(f)

. As the Texas Supr eme Cou rt explained i n Garcia ,

T he revi sion ’ s apparent purpose was to force a plaint iff to decide at the outset whether an employee acted independent ly and is thus s olely liable, or ac ted within the general sc ope of his or her employment such that the gov ern m ental unit is vic ariously liable , thereby reducing the resour ces that the governm ent and its employees must use in defending redundant litigation an d alternative theori es of recovery
. By requir ing a plaint iff to make an irrevocable election at the tim e s u it is filed betwe en suing the go vernmental unit under the Tort Claims Act or proc eedi ng against the employee alone, section 101 .106 narrows the issues for trial an d re duces de lay and duplicative litigation.

G arcia , 253 S.W.3d at 657

. If a plaintiff is u n wise in her choice of which party to sue, she faces a potential bar to recovery f r om b oth the emplo yee and the governmental unit. McFadden v.

2 Forme r S ectio n 101.106 pro vid ed : “ A judgment in an action or a s ettle ment o f a claim under this chapter b ars any action involving the same subject matter by the claimant against the e mployee of the governmental unit whose act or o mission gave rise to the claim

. ” Act of May 17, 1985 , 6 9t h Leg., R.S ., ch . 959 § 1, sec. 101 .1 06, 1 985 Tex. Gen. Laws 3242, 3305 (current versi on at Tex. Civ. Prac. & Rem. Code § 101.106 ).6

Ol esk y , 517 S.W.3d 287, 294 (Tex. App.

— Austin 2017, pet. denied)

. Su bsection 101.106(f) governs circumsta nces i n which a plaintiff has elected to sue a government employee an d provides the emp loye e with the ability to be dismissed from the suit in certain circumstances.
See Tex. Civ. P rac. & Rem. Code § 101.106 (f)

.

The role of S ubsection (f) is to ensure that t or t claims within th e purview of the
TTCA do not proceed against a government emplo yee for c onduct within the scope of his employ ment. Texas Dep ’ t of Aging & Disability Serv s. Comm ’ n v. Cannon , 453 S.W.3d 41 1, 418 (T ex. 2015)

. Critical to the application o f Section 10 1.106(f) is w h ether the claims against the government employees constitute (1 ) to rt claims within the purview of the TTCA , and (2) claims for conduct within the sc ope of the employee ’ s employment. See id

.

Lan kf ord ’ s claims against Abreo
Wit h regard to appellate Iss u e 1 , pertaining to Lan k ford ’ s claims agai nst Abreo,

we conc lude th at the claim s asserted against him , which we re b rought pursuant to Texas C ivil
P ractice and Re m edies Code S ection s 7.001, 34.066 , and 12 .002 , are not cl aims brou ght “ under ”
the TTCA. T he T e xas Supreme Court ha s held tha t tort claims against the govern ment are (or could be) brought “ under this chapter ” regardless of whether the TTCA waive s immunity
for those claims. See Franka v. Velasquez , 332 S.W.3d 3 67, 379

- 80 (T ex . 2011 ) ; Garcia , 253 S. W .3d at 659 ( “ Because the Tort Claim s Act is the only, albeit limited, avenue for

common
- law recovery against the government, all tort the ories alleged against a gove rnmental unit, whether it is sue d alone or together with its e mpl oy ees, are assumed to be ‘ under [the
Tort Claims Act] ’ for pu rposes of section 101.106

. ” ). However, claims asserted pursuant to independent s tatutory waivers of immunity are not brought “ und er ” the Act. Garcia , 253 S.W.3d
at 659 ; see also Kerrvil le HRH v

. City of Kerrville , 803 S .W.2d 377, 381 (Tex. App.

—7

San Anton io 1990, writ denied ) ( holding that TTCA is inapplicable to claim brought under Deceptive Trade Practices Act because it “ do es not involve a tor t claim ” ).

In the present case, none of Lan k ford ’ s cl aims against Abreo ar e common
- law

tort claims , and each is brought pursuant to ind ependent statutor y waivers of immunity

. Consequently, the claims against Abreo are not within the TTCA ’ s pu rview and are not
considered brought “ under ” the TTCA for pur pos es of S ection 101.106

. See Cannon , 453 S.W.3 d
at 415 ( holding that “ claims asserted pursuant t o independent statutory waivers of immunity are not brought ‘ under ’ the Act ” ) ; Franka , 332 S.W.3d at 378 (TTCA provides limited waiver for

common
- law re c overy ag ai nst governmental unit ) . Moreover, S ections 7.001 and 34.066 expressly co ntemplate an action ag ainst executing officers and court officers , not one against the government employer. See Tex. Civ. Prac . & Rem. Code § 34.068 (claims for damages brought

u nd er S ection 7.001 and 34

. 066 “ shall be brought in the form o f a l a wsuit filed against the
officer ” ). Conseq uently, the claims Lan kford asserted against Abreo are not “ under ” the TTCA , and S ection 10 1.106 does n ot apply to those claims. The trial court t he re fore erred by grantin g Abreo ’ s plea to the jurisdiction seeki ng dismissal based on TTCA S ecti o n 101.106( f)

. We
sustain Lankford ’ s appellate I ssue 1

.

Vickers ’ s claims against Dzienowski With regard to appellate Issue 2, pertaining to Vickers ’ s claim s ag ainst
Dzien owski, t he false

- impr isonment claim against him is one t hat is “ under ” the TTCA. See
Franka , 332 S.W.3d at 378 (holding that all tort theories alleged against governmental unit are
assumed to be “ under ” the TTCA for purposes of S ection 101. 10 6 ) ; Garcia , 253 S.W.3 d a t 658

- 59) (holding that claims for intentiona l torts are not excluded from S ection 101.106 ’ s application
because “ under this chapter ” has never been interpreted to enco mpass only tort claims for which8

TTCA waives immunity). 3 Th e p ar ties join issue, howev e r , on whether Dzienowski ’ s alleged
conduct was with in the scope of his employment. See Cannon , 453 S.W.3d at 418 (role of
S ection 101.106(f) is to ensure tort claims within purview of TTCA do not proceed against employee for con du ct within scope o f employ ment).

Section 101.106(f) “ provides t he appropriate av enue for dismissal of an employee who is considered to have been sued in his official capacity, ” i.e., when suit is brought “ for conduct within the general scope of his empl oy me nt and [when] s u i t could have been broug ht
under the TT CA agai nst th e government. ” See Alexander v. Walker , 435 S.W.3d 789, 791 (Tex. 2014) (per curiam). I f the conduct alleged by Vickers is within the scope of Dzien owski ’ s employment, his suit is co ns id ered to be again s t hi m in his official capacity a nd he is ent itled to
dismissal under S ection 101.106(f)

. Id. As defined in the TTCA, “ scope of employment ” means

“ the per formance for a governmental unit of the duties of an employee ’ s office or employ me nt
and includes be i ng in or about the performance of a task law fully assigned to an employee by competent authority. ” Tex. Civ. Pr ac. & Rem. Code § 101.001(5) . A governmental official acts within the scope of his authority if he is discharging the duti es g enerally assigne d to him. City of
Lancas ter v. Chambers , 883 S.W.2d 650, 658 (Tex. 1 994) ; Fink v. Anderson , 477 S .W.3d 460,
466 (Tex. App.

— Houston [1st Dist.] 2015, no pet.)

. Accordingly, “ [ t ] he dispositive question i s:

‘ [I]n w hat capacity was the office r acting at the ti me he comm itted the acts for which the

3 This is true even though a different section of the TTCA pro vides that “ [t]his chapter does not apply to a cl a im . . . a ri sing out of assault, battery, false i mprisonment, or any othe r intentional tort, including a tort involving disciplinary action by school authorities. ” Tex. Civ. Prac. & Rem. Code § 101.057 (2) ; see Wetherbe v. Laverie , No. 07

- 17

- 00306

- CV, 2 019 WL 375691 1, at *2 (Tex. App.

— Amarillo Aug . 8, 20 19 , no pet. ) (mem. op.) ( “ [ F]or the application of section 101.106(f) , Wetherbe ’ s [intentional tort] suit could have been brought under the TTCA again st Texas Tech [ University ]

. ” ).9

compla int was made? ’ ” McFadden , 517 S.W.3d at 296 (quoting Blackwell v. Harris County , 909 S.W.2d 135, 139 (Tex. App

. — Ho uston [14th Dist.] 1995, writ denied ) )

.

The sup re me court has held that the office r ’ s state of mind or intent at the time of the alleged tort is not relev ant :
Nothing in the election

- o f

- remedies provi sion or the statutory d efini tion of “ scope of employm ent ” suggests subjective intent is a necessary co mp on ent of the sco pe
of

- emplo yment ana l ys is. Rather, the [TTCA] focuses on “ perform ance . . . of the dut ies of an employee ’ s office or employment, ” which calls for an objectiv e as sessment of whether the employ ee was doi ng her job when she comm itted an all eg ed tor t, not her s tate of m ind when s he was doing it.

Laverie v. Wetherbe , 517 S.W.3d 748, 753 (Te x. 2016) . The inquiry is whether there is a connection between the employe e ’ s job dut ies and the alleged tortious conduct. Id. “ T he answer may be yes e ve n if the e mployee performs negligent l y or is motivated by ulterior moti ves or personal animus so long a s the conduct itself was p ursuant to her job responsib i lities. ” Id. Th us, intentional tor ts can fall within the scope of employment. See id. ; Ale xan de r , 435 S.W.3d at 79 2 (holdi ng th at claims for assault, conspiracy, slander, false arrest, false impr isonment, and malicious prosecution involved c onduct within sher if f ’ s department officers ’ scop e of employment ); Fink , 477 S. W.3d at 466 (citing Ale x an der and other auth orities for ru le th at alleg ed intenti onal tor ts can fall within s cope of employment, noting that intentional torts of assault, theft , fraud, slander, and malicious prosecutio n constituted c onduct within scope of

e m pl oyment and rejecting a rgument that alleg ation of inten tiona l tor t foreclosed possibility that
of ficer acted withi n scope of employ ment).

As the basis for his false

- imprisonmen t claim, Vic kers alleged that Dzienows ki
came to the Property wearing his uniform and entered the h ou se. He alleged th at while at
th e hou se, Dzien ow ski conducted a “ warrant che ck ” on him

. Vickers alleged t hat, although10

intendin g for him to believe that Dzienowski “ was acti ng under the authority of the Sta te
of Texas , ” h is “ actual true intent ” was to “ r un a personal erran d ” for a Ba st rop Co unt y Commissioner. Fin ally, Vickers alleged that while at the Propert y, Dzienowski engaged in
tortio us con duct, specifically false imprisonment , by unlawfully and willfully detaining Vickers

. A s noted above, Dzienow sk i ’ s all eged intent in going to t he Pro perty and conducting a warrant
che ck on Vickers is not a necessary compon ent of determining whether he was acting generally
within the scope of his employ me nt. Moreover , the alleg ation that his c onduct con stituted a n intentional tort d oe s not cause h im to h ave been acting outside the scope of his employment

. We hold t hat the conduct alleged by Vickers is with in the general scope of Dzieno wski ’ s employment as a Bastrop County Sher i ff ’ s dep uty . Accordingly, Vic kers ’ s c laim agai nst
Dzien owski is based on conduct withi n the scope of his employment

. See Alexander , 435 S.W.3d

at 7 92 (holding that claims of malicious prosecution and consp iracy arising fro m conduct
incident to arre st were base d on con duct wi thin gener al scope of employmen t); City of Dallas v. Groden , N o. 05

- 15

- 00033

- CV, 2016 WL 1367380, at *7 (Tex. App.

— Dallas Apr. 6, 2016 , pet. denied) (mem. op.) (holding tha t claims based on offi cers ’ conduc t i n charging ap pellee wit h violation of city vendor ordinan ce were based on cond uct wi thin ge neral scope of emp loyment).

Because Vic kers ’ s cl a i m against Dzienow ski was based on conduct within the
g eneral scope of his employment and could have been brought a gainst his employer, t he claim is
considered to be again st Dzienowski in hi s official capacity only. See Al e xander , 435 S.W.3d

at 792 (holding tha t “ because [the plaintiff ’ s] suit against the officers was based on con duct
within the general scope of the ir employment and could have been brought under the TTCA

a ga inst t he Count y , [t he plaintiff ’ s] su it [was ] cons idered to be against the officers in their
official capacit i es only ” ) (citing Tex. Civ. Prac. & Rem. Code 101.106(f) ). Having been su ed in11

his offic ial capacity, Dzienows k i was enti tled to dismissal of t he claim pursuant to S ection 101.106( f)

. See i d. (h olding that “ because the officers were sued in th eir official capacities, they
were entitled to di smissal pursua nt to subsection (f) ” ). The trial court therefore d id not err in
gr anting Dzienow ski ’ s plea t o the j urisdiction and d ismissing Vic kers ’ s claim against him. We
overrule Vic kers ’ s appellate I ssue 2

.

CONCLUSION

Having concl uded that the trial c ourt erred by granting Abr eo ’ s plea to the jurisdiction , we r e vers e that portion of the trial court ’ s or der dismissing Lank ford ’ s cla ims agai nst Abreo and remand th e case against him to the trial court for further proceedings. 4 W e affirm the trial court ’ s order dismissing Vickers ’ s claim against Dzien owski.

_________________________________________ _ J. W oo dfin Jones, Justic e Before Justices Baker, Theofanis, and Jones *
Affirmed in Par t, Reversed and R emanded in Par t
Filed: July 12, 2023

* Before J. W oodfin Jones, Chi ef Justi ce (Retired) , Th i rd Co u rt of Appeals, sitting by assign ment. See T ex. Gov ’ t Cod e § 74.003(b)

.

4 Be cause the trial court severed t he claims against Abreo from the claims against the remaining defendants , the rem anded case sho uld be assigned a new cause number.