Opinion issued September 3, 2020 

In The

Court of Appeals 

For The

First District of Texas 

———————————— 

NO. 01-19-00024-CV

——————————— 

SURAN WIJE, Appellant

V.

DAVID A. BURNS AND THE UNIVERSITY OF TEXAS AT AUSTIN, 

Appellees 

On Appeal from the 201st District Court

Travis County, Texas

Trial Court Case No. D-1-GN-18-002435 

MEMORANDUM OPINION

Appellant, Suran Wije, filed the underlying suit against appellees—his 

former employer, the University of Texas at Austin, and his former supervisor,
2

David Burns.

1 Wije alleged, among other things, that after he resigned from his 

position at UT, Burns and UT falsified his personnel file in retaliation for Wije’s

being an “internal-only whistleblower” and thereby “de facto blacklisted” him 

from any future employment with UT or the State. The trial court2 granted UT’s

plea to the jurisdiction, dismissing all of Wije’s claims. Wije now appeals, 

asserting in three issues that the trial court erred in (1) overlooking its concurrent 

jurisdiction over his civil rights claims; (2) determining that sovereign immunity 

was not waived for his claims under 42 U.S.C. Section 1983, Title VII of the Civil 

Rights Act of 1964, and the Texas Tort Claims Act (TTCA); and (3) dismissing his 

claims on limitations grounds.

Because we conclude that the trial court lacked jurisdiction over Wije’s 

claims, we affirm.

Background

Wije was employed by UT in the Information Technology Department for 

the McCombs School of Business from 2000 until 2005. David Burns, the director 

of the IT Department, was Wije’s supervisor. Wije alleges that he experienced 

1 Because we construe Wije’s claims against Burns to be primarily brought against 

Burns in his official capacity, see note 9, infra, we will refer to both appellees

collectively as UT, unless we expressly refer to Burns in his individual capacity.

2 The Supreme Court of Texas transferred this appeal from the Court of Appeals for 

the Third District of Texas to this Court pursuant to its docket-equalization 

authority. See TEX. GOV’T CODE § 73.001 (“The supreme court may order cases 

transferred from one court of appeals to another at any time that, in the opinion of 

the supreme court, there is good cause for the transfer.”).
3

discrimination during his employment with UT, including that the IT Department 

secretly recorded his conversations, leaked confidential survey responses solicited 

by UT’s human resources department to supervisors and other leaders, and 

excluded him from meetings. Wije also asserts that, during his employment, he 

acted as an “internal-only whistleblower” in raising concerns to the IT Department 

and other university personnel regarding software quality and the adequacy of 

security systems. Wije resigned, effective immediately, on November 18, 2005.3

Several years later, Wije began applying for new jobs with UT. Despite 

applying for numerous positions, Wije never received any requests for interviews 

and was ultimately unable to obtain new employment with UT. While the exact 

timeline is unclear, Wije asserts that by March 2016, he believed that UT had 

intentionally included a “lie” in his personnel file by stating that he had resigned 

without notice, and this representation served to place Wije on a “de facto 

blacklist” that prevented him from obtaining employment. The record contains an 

email dated April 1, 2016, in which UT HR personnel informed Wije, apparently 

in response to his inquiries, that “[t]he reduction in severity of your reemployment 

code is the action the McCombs School deems appropriate at this time,” and 

3 In some portions of his pleadings, Wije asserts that he was constructively

discharged, but this assertion is contradicted by other statements in his 

pleadings—such as his allegation that he was misled to believe that he left UT on

good terms—and by documents included in the record—such as his employee 

separation form—indicating that he resigned voluntarily and relocated to another 

city. 
4

informing him that the “remaining code is not a ban on employment from the 

University of Texas at Austin or ‘blacklist.’” The HR personnel further appeared to 

deny that he had been banned from future employment, informing him that a ban,

such as the one he suspected had been placed in his file, “is enacted in very 

limited, legal circumstances, and would prevent you from being able to complete 

an application for employment.”

Wije filed a complaint based on the alleged errors in his personnel file with 

the Equal Employment Opportunity Commission (EEOC). On July 29, 2016, the 

EEOC provided Wije with notice that it had dismissed his complaint and informing

him of his right to file a lawsuit under federal law in federal or state court, 

admonishing him that his lawsuit “must be filed within 90 days of your receipt of 

this notice.” This was postmarked August 1, 2016, but nothing in the record 

indicates when Wije received this notice. That same month, however, Wije filed a 

Texas Public Information Act request seeking records related to his employment.

Wije then filed a complaint in federal district court on October 27, 2016. 

That complaint asserted causes of action under Title VII of the Civil Rights Act of 

1964, 42 U.S.C. Section 1983, and several state-law tort claims, including fraud, 

negligence, libel, and intentional infliction of emotional distress. The federal 

district court dismissed Wije’s complaint. In its final order, signed May 5, 2017, 

and entered May 8, 2017, the federal district court expressly dismissed the Title 
5

VII and Section 1983 claims with prejudice. The federal district court further

declined to exercise its supplemental jurisdiction over the remaining state-law 

claims, dismissing them without prejudice. Wije appealed the dismissal to the Fifth 

Circuit, which dismissed his appeal for being untimely filed, and to the United 

States Supreme Court, which denied his writ of certiorari.

Wije then filed the underlying cause of action in state court on May 1, 

2018.4 In his live pleadings, he asserted substantively identical causes of action to 

those he alleged in the federal suit.5 As factual support for his pleadings, Wije

alleged that UT discriminated against him during his employment between 2000 

and 2005, including by recording his conversations in secret, asking him to 

perform work it had not trained him to do, leaking confidential responses to 

personnel surveys to antagonistic and punitive managers, and excluding him from 

4 Contemporaneously with his petition, Wije filed in state court his “Motion to 

Reopen Federal Claims Dismissed with Prejudice,” recognizing that his federal 

claims were dismissed with prejudice while his state claims were dismissed 

without prejudice. He asked the court to “reopen” his claims because UT has 

“never responded to [his] allegations of grave constitutional violations.”

5 Wije also named “John Doe and Jane Doe” as defendants; however, he did not

allege any conduct by or assert any causes of action against these parties. Other 

documents in the record indicate that Wije named them as “placeholders” in the 

event discovery uncovered further wrongdoing by additional parties. Nevertheless, 

the trial court’s final order disposed of all the claims alleged by Wije and 

contained language expressly indicating that the trial court intended that its 

judgment was final and appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195, 200 (Tex. 2001). No one has filed a notice of appeal implicating the Doe 

parties, and none of the arguments on appeal challenge the trial court’s judgment 

with respect to the Doe parties. Accordingly, they are not parties to this appeal.
6

meetings. He further alleged that, upon his resignation in 2005, UT erroneously 

recorded that he resigned without notice and “miscoded” the circumstances of his 

separation from the university, prohibiting him from being rehired.

UT filed a plea to the jurisdiction as to both itself and Burns, a Rule 91a 

motion to dismiss all of Wije’s claims, and a motion to dismiss the tort claims

against Burns. In its Rule 91a motion to dismiss, UT argued that Wije’s claims had 

no basis in law or in fact. In its motion to dismiss the tort claims against Burns, UT 

observed that Wije’s claims against Burns for fraud by nondisclosure, negligence, 

defamation, and intentional infliction of emotional distress were subject to 

dismissal under provisions of the TTCA as set out in Civil Practice and Remedies 

Code section 101.106.

6 In its plea to the jurisdiction, UT asserted that the trial 

6 Civil Practice and Remedies Code section 101.106 is entitled “Election of 

Remedies,” and it provides for the dismissal of certain parties in suits under the 

TTCA against governmental units and their employees. See TEX. CIV. PRAC. &

REM. CODE § 101.106. UT argues that both subsections 101.106(e) and (f) warrant 

dismissal of the tort claims against Burns. Those sections provide:

(e) If a suit is filed under this chapter against both a governmental unit and 

any of its employees, the employees shall immediately be dismissed on the 

filing of a motion by the governmental unit.

(f) 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.
7

court lacked jurisdiction over any of Wije’s claims, arguing that Wije failed to 

allege a waiver of UT’s governmental immunity. UT asserted that the TTCA did 

not waive immunity for any of Wije’s tort claims and that the election of remedies 

provision in the Texas Commission on Human Rights Act (TCHRA), codified in 

Texas Labor Code chapter 21 to “provide for the execution of the policies of Title 

VII of the Civil Rights Act of 1964 and its subsequent amendments,” TEX. LABOR 

CODE § 21.001(1), barred the court from considering Wije’s discrimination and

retaliation claims because he had previously filed them in federal court.

In response to UT’s plea to the jurisdiction, Wije amended his pleadings to 

assert that Labor Code Chapter 21 “expressly abrogates state sovereign and official 

immunity” and to “reiterate[] his employment discrimination civil rights claim 

under Chapter 21.” He further asserted that the TTCA waived immunity. Wije then 

further amended his pleadings, continuing to assert causes of action for 

discrimination and retaliation, referring at times to Section 1983, Title VII, and the 

TCHRA with a specific notation that “‘[Labor Code] Chapter 21’ is to be 

addressed perhaps after discovery.” Thus, Wije asserted in his live pleading claims 

for discrimination and retaliation under Title VII, as implemented at the state level 

in the TCHRA, and he asserted discrimination under Section 1983. He also 

Id. § 101.106(e), (f).
8

asserted state-law claims, including various fraud allegations, negligence, 

defamation, intentional infliction of emotional distress, and breach of contract.

7

The trial court held a hearing on UT’s plea to the jurisdiction, Rule 91a 

motion to dismiss, and motion to dismiss the tort claims against Burns. The trial 

court granted only the plea to the jurisdiction, and this appeal followed.

Plea to Jurisdiction

A. Standard of Review

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat 

an action “without regard to whether the claims asserted have merit.” Mission 

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Without

subject matter jurisdiction, a court does not have the authority to render judgment 

and must dismiss the claims without regard to the merits. See City of Houston v. 

Rhule, 417 S.W.3d 440, 442 (Tex. 2013). The burden is on the plaintiff to plead 

facts affirmatively demonstrating the trial court’s jurisdiction.8 Tex. Dep’t of Parks 

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

7 Although Wije’s pleadings are unclear and do not specifically delineate which 

causes of action are alleged against the University, Burns, or both, we construe his 

pleadings liberally and analyze his claims as if they were asserted against both UT 

and Burns.

8 Wije also appears to raise some concerns regarding his obligations as a pro se

litigant to comport with pleading and evidentiary standards. Texas, unlike federal 

court, follows a “fair notice” standard for pleading. Horizon/CMS Healthcare 

Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see TEX. R. CIV. P. 45 (requiring 

that petition “consist of a statement in plain and concise language of the plaintiff's 
9

We review whether a trial court has subject matter jurisdiction under a de 

novo standard. Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 

162, 166 (Tex. 2013); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 

S.W.3d 849, 855 (Tex. 2002). In doing so, we exercise our own judgment and 

redetermine each legal issue, without giving deference to the lower court’s 

decision. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999). “We

construe the pleadings liberally in favor of the plaintiff[] and look to the pleader[’s] 

intent.” Miranda, 133 S.W.3d at 226.

“Sovereign immunity protects the State from lawsuits for money damages.”

Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).

Generally, “immunity from suit implicates courts’ subject-matter jurisdiction” for 

cause of action. . . .”); id. R. 47 (providing that petition shall contain “a short 

statement of the cause of action sufficient to give fair notice of the claim 

involved”). Plaintiffs also bear to the burden of pleading sufficient facts to 

demonstrate the trial court’s jurisdiction over the claims asserted, and when a

governmental entity challenges jurisdiction on immunity grounds, “the plaintiff 

must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver 

of immunity.” Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 

927 (Tex. 2015).

Pro se litigants are held to the same pleading and evidentiary standards as 

other litigants. See Jackson v. Morrison, No. 03-14-00419-CV, 2015 WL 

4195578, at *2 (Tex. App.—Austin July 8, 2015, no pet.) (mem. op.) (“We 

construe pro se pleadings and briefs liberally, but we hold pro se litigants to the 

same standards as licensed attorneys and require them to comply with applicable 

laws and rules of procedure.”) (citing In re N.E.B., 251 S.W.3d 211, 211–12 (Tex.

App.––Dallas 2008, no pet.) and Mansfied State Bank v. Cohn, 573 S.W.2d 181, 

184–85 (Tex.1978)). “To do otherwise would give pro se litigants an unfair 

advantage over litigants represented by counsel.” Id.; Mansfield State Bank, 573 

S.W.2d at 185.
10

lawsuits in which the state or certain governmental units have been sued, unless the 

state consents to suit. Rusk State Hosp. v. Black, 392 S.W.3d 88, 91, 93 (Tex.

2012); Miranda, 133 S.W.3d at 224; see also Alamo Heights Indep. Sch. Dist. v. 

Clark, 544 S.W.3d 755, 770 (Tex. 2018) (immunity from suit may be asserted 

through plea to jurisdiction). A state agency, such as UT, shares this governmental

immunity. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976); see TEX.

CIV. PRAC. & REM. CODE § 101.001(3)(D); Univ. Interscholastic League v. Sw.

Officials Ass’n, Inc., 319 S.W.3d 952, 957 (Tex. App.—Austin 2010, no pet.)

(“The University of Texas was created by the Texas Constitution, see TEX. CONST.

art. VII, § 10, and it is well settled that state universities are governmental 

entities.”). The state or governmental unit can be sued only if the Legislature 

waives immunity in “clear and unambiguous language.” TEX. GOV’T CODE

§ 311.034.

A jurisdictional plea may challenge the pleadings, the existence of 

jurisdictional facts, or both. Clark, 544 S.W.3d at 770. “When a jurisdictional plea 

challenges the pleadings, we determine if the plaintiff has alleged facts 

affirmatively demonstrating subject-matter jurisdiction.” Id. “If, however, the plea 

challenges the existence of jurisdictional facts, we must move beyond the 

pleadings and consider evidence when necessary to resolve the jurisdictional 
11

issues, even if the evidence implicates both subject-matter jurisdiction and the 

merits of a claim.” Id. at 770–71.

Here, the trial court granted UT’s plea to the jurisdiction. Wije argues in his 

brief on appeal that the trial court had jurisdiction over his claims—including over 

his “federal claims” for discrimination and retaliation and over his state-law tort 

and breach of contract claims—and that UT’s immunity was waived by Title VII, 

Section 1983, and the TTCA. We address each of these assertions in turn.

B. Title VII and Section 1983 Discrimination and Retaliation Claims

With regard to Wije’s 42 U.S.C. Section 1983 claims, a State, a state agency, 

or a state official in his official capacity has immunity pursuant to the Eleventh 

Amendment to the Constitution “unless that state has waived its sovereign

immunity or Congress has clearly abrogated it.” Moore v. La. Bd. of Elementary & 

Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). In enacting 42 U.S.C. Section

1983, Congress did not abrogate the States’ immunity under the Eleventh 

Amendment, and the State of Texas has not consented by statute. NiGen Biotech, 

LLC v. Paxton, 804 F.3d 389, 394 (5th Cir. 2015). Section 1983 “does not provide 

a federal forum for litigants who seek a remedy against a State for alleged 

deprivations of civil liberties,” and this rule applies to governmental entities 

considered “arms of the State.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 

64–66, 70 (1989) (“[A] State is not a person within the meaning of § 1983”).
12

Therefore, UT, as a state agency, is not subject to suit under Section 1983. See Tex. 

Tech. Univ. Health Scis. Ctr.–El Paso v. Bustillos, 556 S.W.3d 394, 400 (Tex. 

App.—El Paso 2018, no pet.); Harrison v. Tex. Dep’t of Criminal Justice–Inst’l 

Div., 915 S.W.2d 882, 889 (Tex. App.—Houston [1st Dist.] 1995, no pet.). 

Furthermore, to the extent Wije asserted his Section 1983 claim against 

Burns for actions Burns undertook in his official capacity on behalf of the 

University, Burns is generally entitled to the same immunity as his employer.

Under Texas law, a suit against a government employee in his official capacity is a 

suit against his government employer. See Moore, 743 S.W.3d at 963; Franka v. 

Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011); see also Texas A & M Univ. Sys. 

v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (“It is fundamental that a suit 

against a state official is merely ‘another way of pleading an action against the 

entity of which [the official] is an agent.’”). “[A]n employee sued in his official 

capacity has the same governmental immunity, derivatively, as his government 

employer.” Franka, 332 S.W.3d at 382–83. And an official acting in his official 

capacity is not a “person” who may be held liable under Section 1983. See, e.g.,

Leachman v. Dretke, 261 S.W.3d 297, 305 (Tex. App.—Fort Worth 2008, no 

pet.).

9

9 Wije’s pleadings and briefing are unclear regarding the parties against whom he 

alleges his discrimination and retaliation claims, or whether he is attempting to 

name Burns as a defendant in his personal capacity, official capacity, or both. We 
13

Accordingly, we conclude that the trial court did not have jurisdiction over 

Wije’s Section 1983 claims.

must look to the substance of Wije’s claims to determine whether he sued Burns in 

his personal or official capacity. See, e.g., Perez v. Physician Assistant Bd., No. 

03-16-00732-CV, 2017 WL 5078003, at *4 (Tex. App.—Austin Oct. 31, 2017, 

pet. denied) (concluding that “substance of [plaintiff’s] claims were limited to 

claims against [official] in her official capacity,” despite fact that plaintiff

“purported to sue [official] in her official and individual capacities”) (citing City of 

El Paso v. Heinrich, 284 S.W.3d 366, 361–73, 377 & n.7 (Tex. 2009), and Tex. 

Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011)).

Wije complains of some actions undertaken by UT employees leading up to 

his 2005 resignation, including alleging that Burns placed a “lie” in his personnel 

file, but the only allegations related to his current lawsuit—i.e., the allegations

articulated in Wije’s EEOC complaint that UT allegedly discriminated or 

retaliated against him in refusing to rehire him because of the circumstances 

surrounding his 2005 resignation and his role as an “internal-only 

whistleblower”—do not appear to implicate any conduct by Burns. And UT

provided an affidavit of Burns’s own supervisor, who attested that Burns did not 

have any authority to administer employment contracts and that all of Burns’s 

actions as identified in Wije’s pleadings were duties “expected of any official in 

David Burns’ position, and the performance of those duties serve the purposes of 

[UT].” Wije mentions, in a conclusory way, that Burns acting in his individual 

capacity is a person for Section 1983 purposes, but Wije did not plead un-negated 

facts that would support such a claim. See Perez, 2017 WL 5078003, at *5; see 

also Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 77 (Tex. 

2015) (stating “principle that claims against state officials—like all claims—must 

be properly pleaded in order to be maintained”). Neither Wije’s pleadings in the 

trial court nor his brief on appeal make a clear assertion of the particular actions or 

omissions by Burns in his individual capacity that would support a Section 1983 

claim against him. Accordingly, we construe Wije’s pleadings as asserting claims 

against Burns in his official capacity. To the extent that Wije intended to make a 

different argument, any such complaint on appeal is waived. See TEX. R. APP. P. 

33.1(a), 38.1(i); see also Jackson v. Morrison, No. 03-14-00419-CV, 2015 WL 

4195578, at *2 (Tex. App.—Austin July 8, 2015, no pet.) (mem. op.) (citing

Moore v. Brown, 408 S.W.3d 423, 431 n.10 (Tex. App.––Austin 2013, pet. 

denied) (“Even though we liberally construe pro se pleadings and briefs, we will 

not sua sponte address appellate issues and arguments that a litigant might have 

raised but did not.”)).
14

Regarding the remaining federal claims, we observe that Wije has already 

pursued his Title VII discrimination and retaliation claims in federal district court. 

The federal district court where he first filed his Title VII claims dismissed them 

with prejudice, and that ruling was not disturbed during the subsequent appellate 

process. Wije has now alleged the same claims, based on the same underlying 

facts, this time in state court and governed by the state law designed to implement 

Title VII protections in Texas, the TCHRA. See TEX. LABOR CODE § 21.001(1); 

Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) (“The 

[T]CHRA ‘is modeled after federal law with the purpose of executing the policies 

set forth in Title VII of the federal Civil Rights Act of 1964.’”).

The TCHRA, set out in Labor Code chapter 21, contains an election of 

remedies provision:

A person who has initiated an action in a court of competent 

jurisdiction or who has an action pending before an administrative 

agency under other law or an order or ordinance of a political 

subdivision of this state based on an act that would be an unlawful 

employment practice under this chapter may not file a complaint

under this subchapter for the same grievance.

TEX. LABOR CODE § 21.211. Wije elected to pursue his discrimination and 

retaliation claims in federal court, and this election-of-remedies provision 

precludes him from pursuing these same claims in state court under the TCHRA.10

10 We further note that the federal district court has already considered and dismissed 

Wije’s discrimination claims against both UT and Burns under Title VII and 
15

See City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008) (“Section 21.211 

limits the ability to pursue multiple grievances in multiple forums over the same 

alleged conduct.”); Wu v. Tex. A & M Int’l Univ., No. 04-11-00180-CV, 2011 WL 

5406263, at *3 (Tex. App.—San Antonio Nov. 9, 2011, no pet.) (mem. op.) 

Section 1983 with prejudice. The federal district court determined, in relevant part, 

that Wije did not present sufficient evidence to survive the shifting burdens 

required by McDonnell Douglas because he did not present any pleadings or 

evidence that he was replaced by someone outside his protected class or treated 

less favorably than other similarly-situated employees outside his protected group. 

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973) 

(establishing burden-shifting framework for circumstantial-evidence cases brought

under Title VII); Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 764 

(Tex. 2018) (applying McDonnell Douglas burden-shifting framework in TCHRA

case); see also Morris v. Town of Indep., 827 F.3d 396, 400 (5th Cir. 2016) 

(McDonnell Douglas requires plaintiff to show, among other things, that he was 

replaced by someone outside his protected group or was treated less favorably than 

other similarly situated employees outside the protected group). Similarly, the 

federal district court dismissed with prejudice Wije’s Title VII retaliation claim

because he provided no factual basis to support his conclusory allegations that UT

fired him or refused to hire him because of his previous complaints and “internalonly” whistleblowing. See McCoy v. City of Shreveport, 492 F.3d 551, 556–57

(5th Cir. 2007) (holding that to prove retaliation by circumstantial evidence, 

plaintiff must establish causal connection between protected activity and adverse 

employment action). Wije’s state-court pleadings likewise fail to meet these 

requirements, thus implicating the trial court’s jurisdiction to hear Wije’s claims. 

See, e.g., Clark, 544 S.W.3d at 764. This further supports the trial court’s ruling 

granting UT’s plea to the jurisdiction. 

Finally, we note that, although the trial court granted the plea to the 

jurisdiction and not the Rule 91a motion to dismiss or a summary judgment, the 

record evidence would also have supported dismissal of these claims based on 

UT’s res judicata affirmative defense. The federal district court dismissed these 

same claims with prejudice. See Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. 

App.—Houston [14th Dist.] 2000, no pet.) (“Dismissal with prejudice constitutes 

an adjudication on the merits and operates as if the case had been fully tried and 

decided. Thus, orders dismissing cases with prejudice have full res judicata and 

collateral estoppel effect, barring subsequent relitigation of the same causes of 

action or issues between the same parties.”) (internal citations omitted).
16

(“Because Dr. Wu elected to pursue administrative proceedings with the EEOC 

and file his discrimination suit in federal court, the election of remedies provision 

in the [T]CHRA precludes him from pursuing the same claim in state court under 

the [T]CHRA, and any amendment of his pleadings would be futile.”).

C. State-law Tort and Breach of Contract Claims

Wije alleged claims against UT for fraud, negligence, defamation, and 

intentional infliction of emotional distress. He also asserted that UT breached his 

employment contract.11

With regard to his claims for the intentional torts of fraud, defamation, and 

intentional infliction of emotion distress, the State and its governmental units have

explicitly retained immunity from intentional tort claims. The TTCA, codified in

Civil Practice and Remedies Code Chapter 101, explicitly states that it does not 

apply to a claim “arising out of assault, battery, false imprisonment, or any other 

intentional tort.” TEX. CIV. PRAC. & REM. CODE. § 101.057(2) (emphasis added);

see City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014) (explaining that 

TTCA’s “limited waiver does not apply to intentional torts”). Fraud, defamation, 

and intentional infliction of emotional distress are intentional torts. See Seureau v. 

11 Wije alleges a breach of his employment contract, but he never provided a copy of 

the alleged contract. He argued that various paperwork he signed when he 

accepted employment with UT in 2000 constituted an employment agreement, but 

none of the documents provided in the record appear to be a contract for 

employment.
17

ExxonMobil Corp., 274 S.W.3d 206, 219 (Tex. App.—Houston [14th Dist.] 2008, 

no pet.) (holding that fraud is intentional tort for which TTCA provides no waiver 

of immunity); Houston Forensic Sci. Ctr. Inc. v. Barette, No. 01-19-00129-CV, 

2019 WL 5792194, at *3 (Tex. App.—Houston [1st Dist.] Nov. 7, 2019, no pet.)

(mem. op.) (“Defamation per se is an intentional tort for which the TTCA does not 

waive immunity.”); Bates v Pecos Cty., 546 S.W.3d 277, 292 (Tex. App.—El Paso

2017, no pet.) (“Intentional infliction claims do not fall within the TTCA waivers, 

and are accordingly barred.”). Therefore, Wije has not established a waiver of 

sovereign immunity for his intentional tort claims.

Regarding the negligence claims, the TTCA provides a narrow waiver of 

immunity for claims seeking to impose liability for 

(1) property damage, personal injury, and death proximately caused 

by the wrongful act or omission or the negligence of an employee

acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from 

the operation or use of a motor-driven vehicle or motor-driven 

equipment; and

(B) the employee would be personally liable to the claimant 

according to Texas law; and

(2) personal injury and death so caused by a condition or use of 

tangible personal or real property if the governmental unit would, 

were it a private person, be liable to the claimant according to Texas 

law.
18

TEX. CIV. PRAC. & REM. CODE § 101.021. In his negligence cause of action, Wije 

asserted that UT breached its duty not to “engage in the fraud/waste/abuse of 

taxpayers’ precious dollars, to administer employment contracts with neutrality,

without discrimination, and to safeguard employees’ constitutional rights.” None 

of these alleged breaches implicates conduct falling within the TTCA’s waiver of 

immunity. 

Wije argues that this case involves the misuse of tangible personal property 

because UT used HR forms, computers, and computer networks in negligently 

managing his work and administering his employment contract. Wije’s assertions 

ignore the fact that the governmental unit must not only use the property, the 

property also must have actually caused the plaintiff’s injury for the waiver of 

immunity to apply. Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 

2001). If the use of the property merely furnishes a condition that makes the injury 

possible, rather than causing it, then the government’s sovereign immunity remains 

intact.12 Id.; Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 

12 As with his discrimination and retaliation claims, Wije’s pleadings do not clearly 

delineate which state-law claims are alleged against UT, Burns, or both. To the 

extent that Wije was attempting to plead these claims against Burns, we note that 

UT moved to dismiss the tort claims against Burns pursuant to Section 101.106(e) 

and (f). Although the trial court did not grant this motion, other courts have held 

that dismissal of the employee was proper under circumstances similar to those in 

this case. See, e.g., Mission Consol. Indep. Sch. Dist., 253 S.W.3d 653, 655–56 

(Tex. 2008) (defamation, negligence, and fraud claims are subject to Section 

101.106 dismissal); Donohue v. Butts, 516 S.W.3d 578, 581–82 (Tex. App.––San 

Antonio 2017, no pet.) (defamation and intentional infliction of emotional distress 
19

S.W.2d 339, 343 (Tex. 1998); Univ. of Tex. Med. Branch at Galveston v. Tatum, 

389 S.W.3d 457, 461 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Here, the 

personal property used by UT personnel did not actually cause Wije’s injuries; 

rather, they merely furnished the condition that made the alleged injury possible. 

See Miller, 51 S.W.3d at 588. 

Finally, nothing in the TTCA or other authority cited by Wije waives UT’s 

immunity from suit for breach of the alleged employment contract. Generally, a 

governmental unit possesses both immunity from liability and immunity from suit. 

Catalina Dev., Inc. v. Cty. of El Paso, 121 S.W.3d 704, 705 (Tex. 2003). When a 

governmental unit contracts with a private party it waives immunity from liability, 

but not immunity from suit. Id. The governmental unit can only waive immunity 

from suit through its express consent. Id. Wije has failed to point to any such 

express consent, and we find none in the record. See, e.g., Koseoglu, 233 S.W.3d at

claims are subject to dismissal under Section 101.106); see also TEX. CIV. PRAC.

& REM. CODE § 101.106(f) (quoted in note 6, supra, as providing that tort claim 

against government employee is foreclosed when sued in his individual capacity if 

he is acting within the scope of his employment). As discussed in note 9, supra,

UT provided the affidavit of Burns’s own supervisor, who attested that all of

Burns’s actions as identified in Wije’s pleadings were duties “expected of any 

official in David Burns’ position, and the performance of those duties serve the 

purposes of [UT].” Thus, even if we were to construe that Wije had alleged claims 

against Burns in his individual capacity, UT established the Burns was acting 

within the scope of his employment and, therefore, the tort claims against Burns 

are foreclosed by Section 101.106.
20

840 (sovereign immunity bars breach of contract claims). Wije’s breach of contract 

claim is, thus, barred by sovereign immunity.

13

Because we conclude that the trial court lacked jurisdiction over all the 

claims alleged by Wije, we overrule his first issue, complaining about the trial 

court’s failure to recognize its concurrent jurisdiction over federal claims,14 and his 

second issue, arguing that Title VII, Section 1983, and the TTCA waive UT’s 

immunity here. These defects are not curable, but instead affirmatively negate the 

existence of jurisdiction; therefore, the trial court properly dismissed Wije’s 

claims. See id. at 839–40. Furthermore, the above-discussed grounds are sufficient 

to support the trial court’s granting of UT’s plea to jurisdiction, so we need not 

13 It is unclear whether Wije intended to allege breach of contract against Burns, or 

only UT. Because Wije did not identify any contract between himself and Burns, 

and because UT provided an affidavit from Burns’s supervisor averring that Burns 

lacked any authority to administer employment contracts, we construe Wije’s 

pleadings as asserting the breach of contract claim solely against the University.

14 Wije argues that the trial court erroneously stated that it lacked any jurisdiction 

over his federal claims. However, when Wije asked whether the trial court had 

concurrent jurisdiction over those claims, the trial court responded, “In some 

circumstances, yes, but this agency also has sovereign immunity that covers a lot 

of that.” The trial court stated its intent to look at all of the pleadings and other

motions on file and weigh them thoroughly before ruling. Nothing in the record 

indicates that the trial court rejected the federal claims without fully considering 

the extent of its jurisdiction. And our conclusion that the trial court lacked 

jurisdiction over the discrimination and retaliation claims demonstrates that the 

trial court correctly determined that it could not exercise jurisdiction in this case. 
21

address Wije’s third issue, asserting that the trial court erred to the extent it 

dismissed his claims on limitations grounds.

15

Conclusion

We affirm the judgment of the trial court.

Richard Hightower

Justice

Panel consists of Justices Goodman, Landau, and Hightower.

15 There are several pending motions, including UT’s motion to strike Wije’s reply 

brief, Wije’s motion for leave to file a sur-reply brief, and Wije’s motion to strike 

portions of UT’s brief. Because we considered the portions of the appellate 

briefing that were timely filed and properly before this Court for consideration and 

have now resolved this appeal, we dismiss the pending motions as moot.