Concurring o pinion issued July 29, 2013.

In The 

## Court of Appeals For The 

## First District of Texas

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——————————— THE BO AR D OF T R U STE E S OF THE G A L V ESTON W H ARV ES, A ppe l l a nt V. E.L. O’RO U R KE, A ppe l l ee
On Appeal from the County Court at Law No. 2 Galveston County, Texas Trial Court Ca se No. 61873



### CONCURRING OPINION When the Court’s opinion issued on May 30, 2013, my study of the case was still on

- going and I had sufficiently grave reservations regarding the resulting disposition t hat I voted to diss ent, with my dissent to follow. I have since2 concluded that I concur in the judgment of the Court despite Mr. O’Rourke being left without a remedy for having been assaulted, targeted and maligned. As pleaded, his is the “y ou can’t get there from here” dilemma. The majority opinion’s very first sentence of the “Background” section describes appellee E. L. “Ted” O’Rourke as, “president [ sic ] of the International Longshoremen’s Association Local 20” (ILA), who “has a history of altercations with the Port of Galveston Police Department.” Not only is such a shadowy cast of O’Rourke (a 34 year member of the ILA, he was elected as the Local’s President eleven years ago) uncalled for, the record reflects that it was an assault upo n O’Rourke by Port Police Officer Perkins that gives rise to this case. 1 Indeed, there is a history , but it is a history of harassment of O’Rourke and Local 20 members by Galveston City police officers working at the Port or Port Policemen themselves (inc luding Officer Perkins), dating from 2002 when O’Rourke intervened on behalf of porters (who handle luggage from cruise lines that enter the Port) being stopped by the Port Police on pretext stops in order to “persuade” them to kick

- back some of the tip money the porters r eceived from the passengers. When O’Rourke demanded such “shake downs” cease, the Port Police took note and intimidation commenced soon thereafter (January 2003) when O’Rourke was given a parking ticket, despite his car being parked off Port property and legally parked.

1 Perkins had been subject of nine prior complaints for which he was never disciplined.3 The next interchange between Perkins and O’Rourke was December 2,
2007 , when Perkins ticketed O’Rourke ’s car. Believing he was legally parked, O’Rourke sought an explanation of the violation from Perkins, whose respon se was “You remember what you did to me” (referencing the porter “shake

- down” episode). O’Rourke avers that this exchange resulted in Perkins grabbing his neck and pinning him against a bus. O’Rourke’s Original Petition made claims against governmental e ntities as well as individuals. He ultimately abandoned his intentional tort claims against the individuals and sought non

- monetary declaratory and injunctive relief against the Wharves that would a) stop surveillance focused upon him when at the Port; b) acknowledge Perkins’s misconduct and discipline him for it; and c) end targeted surveillance of anyone else. A s actions comprising “illegalities or conduct outside of Appellants’ statutory authority,” these requests for declaratory and injunctive relief fall within the ultra vires exc eption to governmental immunity. See City of El Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009). The ultra vires exc eption, however, only applies to individual state actors, and as such, the Wharves were entitled to dismi ssal of these claims. See id

. at 372

– 73. Threading the needle in such cases is increasingly difficult , and pursuit of declaratory and injunctive relief against the individual state actors in their official capacities, as opposed to the4 governmental entit y, may have been the only means to survive the plea to the jurisdiction. Conclusion Accordingly, I concur in the judgment.

Jim Sharp Justice
Pa n e l c o n s is t s o f J u st i ces K e y e s , S h ar p , a n d H u d d l e . Justice Sharp, concurring.