No. 04-15-00068-CV

IN THE TEXAS COURT OF APPEALS 

FOURTH COURT OF APPEALS 

AT SAN ANTONIO, TEXAS 

JOHN M. DONOHUE 

APPELLANT 

VS. 

PERLA DOMINGUEZ and KEVIN NAKATA, 

In Their Individual Capacities 

APPELLEES 

Appealed from the 57th Judicial District Court 

Bexar County, Texas 

APPELLEES’ BRIEF

Mark Kosanovich 

State Bar No. 00788754 

FITZPATRICK & KOSANOVICH, P.C. 

P.O. Box 831121 

San Antonio, Texas 78283-1121 

mk@fitzkoslaw.com 

Phone: (210) 207-7259 

Fax: (210) 207-8997 

ATTORNEY FOR APPELLEES, 

PERLA DOMINGUEZ and KEVIN NAKATA 

ACCEPTED

04-15-00068-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

8/10/2015 1:27:26 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 8/10/2015 1:27:26 PM KEITH E. HOTTLE Clerk
i

INDENTITIES OF PARTIES AND COUNSEL

Appellant

John M. Donohue – pro se John M. Donohue

Duncan Unit

1502 South 1st Street

Diboll, Texas 75941

Appellees’ Counsel

Perla Dominguez & Kevin Nakata Mark Kosanovich

Fitzpatrick & Kosanovich, P.C.

P.O. Box 831121

San Antonio, Texas 78283-1121

mk@fitzkoslaw.com

(210) 207-7259 – Telephone 

(210) 207-8997 – Facsimile 
ii

TABLE OF CONTENTS

INDENTITIES OF PARTIES AND COUNSEL ...................................................... i

TABLE OF CONTENTS.......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE..................................................................................v

STATEMENT REGARDING ORAL ARGUMENT ............................................. vi

ISSUES PRESENTED............................................................................................ vii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................2

ARGUMENT.............................................................................................................2

I. Standard of Review for a Motion to Dismiss...................................................2

II. Appellant failed to preserve error for review on appeal of Appellant’s 

argument that his suit was improperly dismissed by the trial court because he was 

not afforded meaningful discovery and because a court reporter was not present 

to record Appellant’s verbal testimony provided through a teleconference...........3

III. The trial court did not commit error when it dismissed the claims against 

Appellees because all of Appellant’s claims were brought under the Texas Tort 

Claims Act making the claims subject to dismissal through the election of 

remedies provisions of the Texas Tort Claims Act.................................................4

IV. The trial court did not commit error when it dismissed Appellant’s claims 

pursuant to TEX. CIV. PRAC. & REM. CODE §101.106(f) because Appellees’ 

conduct when they arrested Appellant was within the general scope of their 

employment.............................................................................................................8

CONCLUSION........................................................................................................10

PRAYER..................................................................................................................10

CERTIFICATE OF COMPLIANCE.......................................................................12

CERTIFICATE OF SERVICE ................................................................................13
iii

TABLE OF AUTHORITIES

Cases

Alexander v. Walker

435 S.W.3d 789 (Tex. 2014)...................................................................................9

American Transitional Care Ctrs. of Texas, Inc. v. Palacios

46 S.W.3d 873 (Tex. 2001).....................................................................................2

Burdett v. Doe

2008 WL 5264913 (Tex. App. – Austin Dec. 17, 2008, no pet.) ...........................7

City of Webster v. Myers

360 S.W.3d 51 (Tex. App. Houston [1st Dist.] 2011, pet. denied); ........................7

Franka v. Vasquez

332 S.W.3d 367 (Tex. 2011)...................................................................................6

Kelemen v. Elliott

260 S.W.3d 518

(Tex. App. Houston – 2008 [1st Dist.], no pet.). .....................................................7

Mission Consolidated Indep. Sch. Dist. v. Garcia

253 S.W.3d 653 (Tex. 2008)...............................................................................5, 7

Singleton v. Casteel

267 S.W.3d 547 (Tex. App. – Houston [14th Dist.] 2008, pet. denied). .................3

Texas Adjutant General’s Office v. Ngakoue

408 S.W.3d 350 (Tex. 2013)...................................................................................5

U. Lawrence Boze’ & Assoc. P.C. v. Harris County Appraisal Dist.

368 S.W.3d 17 (Tex. App. – Houston [1st Dist.] 2011, no pet.).............................4

Statutes

TEX. CIV. PRAC. & REM. CODE §101.001(5)..............................................................8

TEX. CIV. PRAC. & REM. CODE §101.021(1)-(2)........................................................5

TEX. CIV. PRAC. & REM. CODE §101.106(f)..................................................... passim
iv

Rules

TEXAS RULE APPELATE PROCEDURE 33(a)(1).........................................................3,4

Treatises

Restatement (Third) of Agency §7.07(2)...................................................................9
v

STATEMENT OF THE CASE

Nature of the Case: Appellant filed suit against the San Antonio Police 

Department, the San Antonio Chief of Police, Perla 

Dominguez, Bexar County EMS and Officer John Doe, 

asserting claims for false imprisonment, assault, 

aggravated assault, claims under the Texas Penal Code

and claims under the Texas Constitution. The facts 

giving rise to Appellant’s suit stemmed from his arrest in 

on August 2, 2013. 

Trial Court’s 

Proceedings and 

Disposition: The Honorable Laura Salinas heard Perla Dominguez’s 

Motion to Dismiss and Kevin Nakata’s Motion to 

Dismiss on January 8, 2015. (CR 138-141, CR 153-158). 

On this same day, Judge Salinas granted Appellees’ 

Motions to Dismiss. (CR 200). Appellant filed a Motion 

to Reinstate Perla Dominguez and Kevin Nakata as 

Defendants on January 23, 2015. (CR 212-217). The 

Honorable Laura Salinas denied Appellant’s Motion to 

Reinstate Perla Dominguez and Kevin Nakata as 

Defendants on January 30, 2015. (CR 223). On 

February 13, 2015, Appellant filed his Notice of 

Interlocutory Appeal. (CR 227-237). 

Requested Disposition 

From This Court: Appellees request that this Court affirm the judgment of 

the trial court. 
vi

STATEMENT REGARDING ORAL ARGUMENT

Appellees do not request oral argument in this matter. 
vii

ISSUES PRESENTED

ISSUE NO. 1 RESTATED:

Whether Appellant failed to preserve error for review on appeal his allegations that 

he was not afforded meaningful discovery and that a court reporter was not present 

to record Appellant’s testimony?

Appellant failed to preserve error for review on appeal of Appellant’s argument 

that his suit was improperly dismissed by the trial court because he was not 

afforded meaningful discovery and because a court reporter was not present to 

record Appellant’s verbal testimony provided through a teleconference. 

ISSUE NO. 2 RESTATED:

Did the trial court commit error when it dismissed Appellant’s claims under TEX.

CIV. PRAC. & REM. CODE §101.106(f) because Appellant’s claims under the Texas 

Penal Code and the Texas Constitution were not claims that fell under the Texas 

Tort Claims Act?

The trial court did not commit error when it dismissed the claims against Appellees

because all of Appellant’s claims were brought under the Texas Tort Claims Act

making the claims subject to dismissal through the election of remedies provisions 

of the Texas Tort Claims Act. 

ISSUE NO. 3 RESTATED:

Did the trial court commit error when it dismissed Appellant’s claims pursuant to 

TEX. CIV. PRAC. & REM. CODE §101.106(f) because Appellees’ conduct when they 

arrested Appellant was not within the general scope of their employment? 

The trial court did not commit error when it dismissed Appellant’s claims pursuant 

to TEX. CIV. PRAC. & REM. CODE §101.106(f) because Appellees’ conduct when 

they arrested Appellant was within the general scope of their employment. 
1

STATEMENT OF FACTS

Appellees, Perla Dominguez and Kevin Nakata are San Antonio Police 

Department officers. Appellant, Donohue, who is currently incarcerated, was 

arrested by Appellees on August 7, 2013 and transported to University Hospital in 

San Antonio.1 (CR 72, 75).2 According to Appellant, prior to his arrest he called 

the police department to have a police report taken at his mother’s house regarding 

items involved in a divorce. (CR 71-17). Appellant claims that he was supposed 

to meet the officers at the house, but his mother called and told him the officers 

were already at the residence. (CR 72-73). When Appellant arrived at the house, 

Officer Dominguez and another officer (who was later identified as Officer 

Nakata) were at the house. (CR 72). Appellant, who refused to get out his truck 

once getting to the scene, talked to the officers on his cell phone. (CR 73). 

Eventually, Appellant got out of the truck. (CR 74). Once outside the truck, 

Appellant claims the officers jumped on him, threw him to the ground, pulled his 

arms behind his back and tightened the handcuffs that were put on him. Id. 

Appellant claims he was placed in the back of a patrol car. (CR 75). Appellant 

 

1 The facts of this case are drawn from Appellant’s “2

nd Amendment to Plaintiff’s Original Claim 

for Assault and False Imprisonment” verified on October 7, 2014. (CR 71-77). Appellant filed 

motions to “supplement his allegations and claims as to both Appellees on November 24, 2014. 

(CR 105-129). On November 24, 2014 – the same date as the “supplemental” filings – the clerk 

filed “Petitioner’s Original Complaint and Claims for False Imprisonment and Assault.” (CR 

130-137). 

2

“CR” denotes Clerk’s Record. The page references after “CR” point to the pagination added by 

the Clerk. 
2

claims that while his legs were outside of the patrol car, he was kicked by Officer

Nakata. Id. Appellant claims he was transported to the University Hospital 

Emergency Room. Id. Appellant filed his suit on August 7, 2014. (CR 1-8). 

Appellant filed suit in this case on August 7, 2014. (CR 1-8) Appellees 

Dominguez and Nakata filed their motions to dismiss under Texas Civil Practice 

and Remedies Code §101.106. (CR 138-141, 153-158) This matter was heard on 

January 8, 2015, and the motion was granted by the Honorable Laura Salinas. (CR 

200). Appellant filed a Motion to reinstate his claims against these Appellees, 

which was denied by Judge Salinas. (CR 212-217, 223). Appellant subsequently 

filed this appeal.

SUMMARY OF THE ARGUMENT

The trial court properly dismissed all of Appellant’s claims for assault, false 

imprisonment, claims under the Texas Penal Code and his claims under the Texas 

Constitution pursuant to TEX. CIV. PRAC. & REM. CODE §101.106(f). 

ARGUMENT

I. Standard of Review for a Motion to Dismiss

Generally, a trial court’s order for a motion to dismiss is reviewed under an 

abuse of discretion standard. American Transitional Care Ctrs. of Texas, Inc. v. 

Palacios, 46 S.W.3d 873, 878 (Tex. 2001). However, the proper standard of 

review is not necessarily determined by the caption on the motion to which the 
3

order relates, rather it is determined by the substance of the issue to reviewed. 

Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App. – Houston [14th Dist.] 2008, 

pet. denied). A motion under §101.106(f) raises an issue of official immunity. Id. 

If official immunity applies, the trial court lacks subject matter jurisdiction over the 

case. Id. Subject matter jurisdiction is a question of law which an appellate court 

reviews de novo. Id. 

II. Appellant failed to preserve error for review on appeal of Appellant’s 

argument that his suit was improperly dismissed by the trial court 

because he was not afforded meaningful discovery and because a court 

reporter was not present to record Appellant’s verbal testimony 

provided through a teleconference. 

Appellant claims that the trial court committed error by dismissing his case 

without affording him reasonable discovery and by not having a court reporter 

present to record testimony. Appellant’s Brief, p. 3. Appellant contends that 

Officer Dominguez was “hostile to discovery” and that Officer Nakata refused to 

respond to discovery. Id. Between the hostility and the refusal to respond, 

Appellant contends he was denied access to police reports, witness statements and 

hospital records necessary to support his claims. Id., p. 4. Appellant contends that 

further discovery will prove his claims are true and correct. Id. 

Appellant failed to preserve any error regarding discovery or the lack of a 

court reporter taking testimony. Under TEX. R. APP. P. 33(a)(1), a party seeking to 

preserve error for appellate review must show that the complaint was made to the 
4

trial court and the trial court either ruled on the motion or refused to rule on the 

motion. TEX. R. APP. P. 33(a)(1); U. Lawrence Boze’ & Assoc. P.C. v. Harris 

County Appraisal Dist., 368 S.W.3d 17, 33 (Tex. App. – Houston [1st Dist.] 2011, 

no pet.)(to preserve error on a discovery dispute, the appealing party must obtain 

a ruling by the trial court on the discovery issue). In this case, Appellant failed to 

obtain a ruling from the trial court regarding any discovery dispute or the alleged 

failure to have a record made of testimony. Since Appellant failed to preserve 

error regarding his claims regarding discovery and the recording of testimony, the 

trial court did not commit reversible error.

III. The trial court did not commit error when it dismissed the claims 

against Appellees because all of Appellant’s claims were brought under 

the Texas Tort Claims Act making the claims subject to dismissal 

through the election of remedies provisions of the Texas Tort Claims 

Act.

Appellant appears to argue two different reasons that the claims he is 

pursuing do not fall under the provisions of the Texas Tort Claims Act (TTCA) 

and thus are not subject to dismissal under TEX. CIV. PRAC. & REM. CODE

§101.106(f). He contends that he is pursuing criminal acts under the Texas Penal 

Code and that they do not fall under the TTCA. Appellant’s Brief, p. 5. He also 

contends that his “state and constitutional claims are not barred by immunity.”3 

 

3 Appellant’s “2

nd Amendment” pleading does not contain a reference to the Texas Constitution. 

However, his supplements as to both Appellees, which he claimed were incorporated into his 
5

Id., p. 11. As to his constitutional allegations, Appellant contends that the trial 

court erred in not addressing the claims. Id. 

 The TTCA provides for a limited waiver of immunity for certain torts 

against the government. Texas Adjutant General’s Office v. Ngakoue, 408 

S.W.3d 350, 354 (Tex. 2013). Generally, a governmental unit can be liable under 

the TTCA for the property damage, personal injury or death caused by the 

wrongful act or omission or negligence of an employee acting within the scope of 

his or her employment for an injury that arises from the operation or use of a 

motor-driven vehicle if the employee would be liable under Texas law or for 

personal injury or death caused by the use or misuse of tangible personal property. 

TEX. CIV. PRAC. & REM. CODE §101.021(1)-(2). The TTCA contains an 

election-of-remedies provision which requires a determination as to whether an 

employee acted independently and is thus solely liable, or acted within the general 

scope of his or her employment such that the governmental unit is vicariously 

liable. Mission Consolidated Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 

(Tex. 2008). The election-of-remedies provision requires a plaintiff to make an 

irrevocable election at the time suit is filed between suing the governmental unit 

under the TTCA or proceeding against the employee alone. Id. Section 101.106 

 

second amendment reference the Texas Constitution. (CR 108, 119). Assuming these claims are 

before the Court, they are subject to dismissal. 
6

narrows the issues for trial and reduces delay and duplicative litigation costs. Id. 

In relation to the issues in this suit, §101.106(f) provides the following:

If a suit is filed against an employee of a governmental unit based on 

conduct within the general scope of that employee’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 capacity only. On the employee’s motion, the

suit against the employee shall be dismissed unless the plaintiff files 

amended pleadings dismissing the employee and naming the 

governmental unit as defendant on or before the 30th day after the date 

the motion is filed.

TEX. CIV. PRAC. & REM. CODE §101.106(f). 

When Appellant filed this suit, he specifically identified the San Antonio 

Police Department, the San Antonio Police Chief, Officer Dominguez, Officer 

John Doe and Bexar County EMS as defendants in both their individual and 

official capacities. (CR 1). Under Texas law, a suit against a government 

employee in his official capacity is a suit against his government employer with 

one exception: an action alleging that the employee acted ultra vires. Franka v. 

Vasquez, 332 S.W.3d 367, 382 (Tex. 2011). Since Appellant sued both Appellees 

in their individual and official capacities and he also brought suit against 

governmental entities, he made the irrevocable election to file suit against 

governmental units and the individual Appellees. 

Appellant appears to be arguing that since he is asserting claims under the 

Penal Code, his claims are not being brought “under” the TTCA. Appellant’s 
7

Brief, p. 5. He contends he is seeking a remedy under the Penal Code. Id. To the 

extent Appellant asserts his claims do not fall under the TTCA and are not subject 

to §101.106, this argument is incorrect. Because the TTCA is the only, albeit 

limited, avenue for common law recovery against the government, all tort theories 

alleged against a governmental unit, whether it is sued alone or together with its 

employees, are assumed to be under the TTCA for purposes of §101.106. Garcia, 

253 S.W.3d at 659. Claims brought under the Penal Code fall under the TTCA if 

they seek damages against the governmental unit because the term “under this 

chapter” in the TTCA includes claims for which the TTCA does not waive 

liability. Kelemen v. Elliott, 260 S.W.3d 518, 523 (Tex. App. Houston – 2008 [1st

Dist.], no pet.). Appellant sought compensatory damages for the Penal Code 

violations. (CR 7). Appellant’s “supplemental” pleadings as to both Appellees 

stated that he was seeking compensatory damages for, among other things, the 

Penal Code. (CR 111, 119). Therefore, the claims fall under the TTCA and they 

are subject to dismissal under §101.106(f). 

Appellant’s claims under the Texas Constitution also fall under the TTCA. 

A claim seeking damages for alleged constitutional violations is brought under the 

TTCA for purposes of §101.106. City of Webster v. Myers, 360 S.W.3d 51, 60 

(Tex. App. Houston [1st Dist.] 2011, pet. denied); See Burdett v. Doe, 2008 WL 

5264913, at *3 (Tex. App. – Austin Dec. 17, 2008, no pet.)(while framed as a 
8

constitutional violation, the plaintiff’s suit sought damages against the city and 

was considered to be brought under the TTCA for purposes of §101.106). In the 

“supplemental” pleadings filed by Appellant as to both Appellees, Appellant 

clearly states that he is seeking compensatory damages, amongst other damages 

and claims, under the Texas Constitution. (CR 111, 119). As such, Appellant’s 

claims under the Texas Constitution were under the TTCA and were subject to the 

provisions of §101.106. 

Since Appellants’ claims under the Penal Code and the Texas Constitution 

were for damages, they fell under the TTCA and the provisions of §101.106. 

Therefore, the trial court did commit error in dismissing these claims and the 

judgment of the trial court should be affirmed. 

IV. The trial court did not commit error when it dismissed Appellant’s 

claims pursuant to TEX. CIV. PRAC. & REM. CODE §101.106(f) because 

Appellees’ conduct when they arrested Appellant was within the general 

scope of their employment. 

 Appellant makes two arguments claiming the trial court erred when it 

dismissed his suit involving the scope of Appellee’s employment. Appellant’s 

Brief, p. 7, 9. Appellant contends that both Appellees acted outside the scope of 

their employment. Id., p. 7. He also contends that Appellees cannot satisfy the 

first prong of §101.106(f) because they operated outside the scope of their 

authority and are not entitled to official immunity. Id., p. 10. 
9

The TTCA defines the term “scope of employment” as the “performance for 

a governmental unit of the duties of an employee’s office or employment and 

includes being in or about the performance of a task lawfully assigned to an 

employee by competent authority.” TEX. CIV. PRAC. & REM. CODE §101.001(5). 

The Restatement (Third) of Agency provides additional clarification by defining 

the term negatively: “an employee’s act is not within the scope of employment 

when it occurs within an independent course of conduct not intended by the 

employee to serve any purpose of the employer.” Alexander v. Walker, 435 

S.W.3d 789, 792 (Tex. 2014); quoting Restatement (Third) of Agency §7.07(2). 

Arresting an individual in the course of employment for a governmental entity is 

conduct that falls within the general scope of an officer’s employment. Id., at 792. 

In Alexander, the plaintiff brought suit alleging assault, conspiracy, slander, false 

arrest, false imprisonment and malicious prosecution against two officers who had 

arrested plaintiff on two separate occasions. The court held that the officers’ 

conduct was within the scope of their employment. Id. The court reasoned that 

the plaintiff had failed to allege any independent course of conduct by the officers 

not intended to serve any purpose of the law enforcement agency. Id. The court 

also reasoned that the claims against the two officers were identical to the tort 

claims brought against the governmental unit in another suit. Id. 
10

Like the plaintiff in Alexander, Appellant has sued Appellees in this matter 

alleging claims for assault and false imprisonment related to his arrest and named 

the SAPD as a liable party for the identical torts. Furthermore, Appellant’s 

allegations against Appellees are for their actions while they were acting as police 

officers for the SAPD. Appellant’s allegations fail to identify any independent 

course of conduct by Appellees that was not done for the SAPD. Therefore, 

Appellees conduct was done within the scope of their employment and their claims 

were subject to dismissal under §101.106(f). As such, the trial court did not 

commit error when it dismissed Appellant’s claims. Therefore, the judgment of 

the trial court should be affirmed. 

CONCLUSION

The trial court properly granted Appellees’ Motions to Dismiss under 

§101.106(f) because Appellant made an irrevocable election to sue Appellees and 

all the other Defendants in their individual and official capacities. Pursuant to 

§101.106(f), the claims against Appellees were properly dismissed because all of 

the claims asserted by Appellant were brought under the TTCA and Appellees 

actions were within the scope of their employment. Since the trial court did not 

commit error, the judgment of the trial court should be affirmed. 

PRAYER
11

WHEREFORE, PREMISES CONSIDERED, Appellees Perla Dominguez 

and Kevin Nakata, respectfully pray that this Court affirm the trial court’s 

judgment dismissing Appellant’s claims and for such other relief to which 

Appellees might be entitled at law or in equity.
12

Respectfully submitted,

Mark Kosanovich

Fitzpatrick & Kosanovich, P.C.

P.O. Box 831121

San Antonio, Texas 78283-1121

mk@fitzkoslaw.com

Telephone: 210-207-7259

Telecopier: 210-207-8997

By: /s/ Mark Kosanovich 

Mark Kosanovich

State Bar No. 00788754

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), undersigned 

counsel for Appellees certifies that the number of words in this document, 

excluding those properly excluded under Texas Rule of Appellate Procedure 

9.4(i)(1), is 2360. 

/s/ Mark Kosanovich 

Mark Kosanovich
13

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the APPELLEES’ BRIEF was 

forwarded via certified U.S. Mail to the following on the 10th day of August, 2015, 

to:

John M. Donohue - 1895073

Duncan Unit 

1502 South 1st Street

Diboll, Texas 75941

/s/ Mark Kosanovich 

Mark Kosanovich