NUMBER 13-22-00152-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

VICTOR J. EDNEY JR., Appellant,

v.

CITY OF WACO, TEXAS, Appellee.

 

On appeal from the County Court at Law No. 3

of McLennan County, Texas.

 

MEMORANDUM OPINION

Before Justices Tijerina, Silva, and Peña

Memorandum Opinion by Justice Tijerina

This appeal is from the grant of a motion to dismiss pursuant to Rule 91a of the 

Texas Rules of Civil Procedure filed by appellee the City of Waco, Texas. See TEX. R.

CIV. P. 91(a). Appellant Victor J. Edney Jr. filed a “Petition for Motion of Frivolous Claims”

against the City’s police department. By two issues, Edney contends that the City’s Rule 

91a motion to dismiss should have been denied because he raised a meritorious claim 
2

for malicious prosecution and the claim was not barred by the applicable statute of 

limitations. We affirm.

1

I. BACKGROUND

On October 19, 2018, an incident occurred at a mall wherein the City’s police 

officers responded and arrested Edney for trespass and “unlawful carry of a weapon.” 

Subsequently, the City dropped the charges against Edney. On December 8, 2021, acting 

pro se, Edney filed suit against the Waco Police Department. In his first pleading entitled, 

“Petition for Motion of Frivolous Claims,” Edney alleged an illegal search and seizure in 

violation of Article 1.9 of the Texas Constitution. Edney requested that the trial court “grant 

this motion of frivolous claims about the [City’s police officers] who presented the falsified 

allegations of [criminal trespass] and [unlawfully carrying a weapon] to the state of Texas 

about the petitioner.” Edney stated:

The respondents violated the Texas Constitution article 1.8 freedom of press and 

speech; Libel—towards the state and the petitioner in our [indecipherable] due to 

negligence of hearsay from the municipal; on the cause of action of frivolous 

pleadings of assault and harassment that were groundless and brought in bad 

faith . . . in which the state of Texas has [found] the petitioner not guilty of the 

pressed allegations.

. . . .

Grant this motion for the state of Texas and its civil practices and remedies ch. 

101.0215[;] Liability of a Municipality that makes the respondents liable for their 

asserted frivolous statements in this ethical dilemma of facts and [indecipherable] 

value already assessed (check the exhibit from the criminal county courts [sic] non 

guilty verdict of the petitioner).

Additionally, Edney asked for the trial court to “pardon the petitioner and grant this 

1 This appeal was transferred to this Court from the Tenth Court of Appeals pursuant to a docketequalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
3

motion of frivolous claims for the unjust acts.” Finally, Edney relayed that he sought “to 

recover fees, expenses, and reasonable attorney’s fee[s] according to Texas state statute 

law under civil practices and remedies ch. 105.003 . . . .”

The City filed a combined motion to dismiss pursuant to Rule 91a and plea to the 

jurisdiction. Specifically, in its motion to dismiss, the City argued that Edney’s claims “for 

violation of the Texas Constitution, for libel, for assault, and for harassment—are without 

any basis in law and thus should be dismissed.” The City pointed out that the statute of 

limitations for libel is one year, and Edney did not file his suit within one year of the alleged 

incident. The City stated that Edney’s “harassment claim appears to be based on the 

officers’ allegedly [accusing] him of criminal misconduct, arresting him, and his resulting 

charge, which is in essence a claim for malicious prosecution,” which is also subject to a 

one-year statute of limitations that Edney failed to meet. Next, the City argued that “[a] 

claim based on violation of the rights protected by the Texas constitution, a civil claim of 

assault and the other intentional tort claims and negligence claims are subject to a twoyear statute of limitations,” and Edney filed his suit outside that period as well. Next, the 

City stated that “the Texas Constitution does not generally create a private cause of action 

for the recovery of money damages.”

Specifically, in its plea, the City argued that none of Edney’s claims of negligence, 

libel, assault, malicious prosecution, intentional torts, or violations of the Texas 

Constitution “for illegal search and seizure and violation of freedom of speech and press” 

“involved a defect in or negligent use of personal property, a defect in or negligent use of 

real property, or the negligent use of motor-driven equipment.” See TEX. CIV. PRAC. &
4

REM. CODE Ann. § 101.021. The City also argued that “[§] 101.057 of the Texas Tort 

Claims Act [TTCA] expressly preserves governmental immunity against intentional torts.”

In addition, the City argued that the TTCA preserves immunity for “[a]ssault, libel, 

malicious prosecution, and alleged actions by the police officers involving alleged illegal 

search and seizure and deprivation of the right of freedom of the press and speech would 

all be considered intentional torts for purposes of Section 101.057.” See id. § 101.057.

Edney then filed a pleading entitled, “First Supplemental Petition on Motion of 

Frivolous Claims in Response to the Defendant[’]s Original Answer and Motion to Dismiss 

Under Rule 91[a],” arguing that the City misconstrued his claims and that his causes of 

action “are falsified allegations of criminal trespass and unlawful carry of a weapon that 

our McLennan criminal county court judge has dismiss[ed] resolution in favor of 

petitioner.” Edney acknowledged that the statute of limitations for malicious prosecution

and libel is one year from the date that the cause of action accrues. As to the City’s plea 

to the jurisdiction, Edney argued that the City “should not get immunity,” and that his arrest 

was improper “based on hearsay and without the burden of proof violating the Texas 

constitution article 1.8—Freedom of speech and press; libel.” Edney claimed that the City

violated the Texas constitution article 1.9—search and seizure for taking 

[Edney] to jail because of the frivolous acts, with the stated

[undecipherable], and jurisdiction in plea [Edney] will note the subpart 16. 

Jurisdiction of the waiver of [undecipherable]; permission to sue that 

states—[undecipherable] immunity from suit defeats a trial court’s subject 

matter jurisdiction because, absent the consent to sue a governmental 

entity, a tria[l] court has no basis for jurisdiction.

The trial court held a hearing on the City’s Rule 91a motion to dismiss and plea to 

the jurisdiction. At the hearing, the City argued that it and its officers were immune to 
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Edney’s claims. Edney responded that his “claims were for . . . [his] civil rights being 

violated. It was the freedom of speech and the search and seizure torts, the unlawful right 

to carry, and the trespass charge that [he] was alleged with . . . and those charges have 

been dismissed.” Edney further claimed that he “only stated” that his claims were for “the 

unlawful right to carry and the trespass that [he] was approved of from the Brad Cates’ 

Criminal Court at Law.” Edney stated, “I never claimed . . . assault, malicious 

harassment.” The trial court asked, “You’re suing the Waco Police Department because 

you’re upset that they hit you with a trespass and unlawful carry of a weapon; is that 

correct?” Edney replied, “Yes, sir.” The trial court said, “Okay. So that would be a 

malicious prosecution type claim” and explained such a claim “fails as a matter of law 

because there’s been no final determination as to your guilt or innocence on that matter” 

and “[f]or you to succeed on a malicious prosecution claim, you have to prove 

that . . . there was a final determination and that final determination found that you were 

not guilty or that you were actually innocent.”

Edney stated that he was also “bringing charges because [the City is] violating [his] 

civil rights of Article 18 and 19” pursuant to “Chapter 16.002.” The trial court told Edney 

that the statute of limitations for that claim is one year that begins on the date of the 

incident. Edney replied that he “didn’t know you could file a suit while you were in court, 

in criminal court,” and he acknowledged that libel has a one-year statute of limitations.

Edney then pivoted stating that “16.003 . . . says statute of limitations . . . [for] 

trespass of injury of the estate or property of another, conversation [sic] of a personal 

property or detaining the personal property of another, personal injury; forcible entry and
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detainer” can be brought “not later than two years after the cause of action.” The trial court 

responded that forcible entry and detainer relate to landlord-tenant disputes. Edney 

appeared to acknowledge that he was not suing for such a claim. The trial court granted

the City’s motion and plea to the jurisdiction, and it dismissed Edney’s cause of action

with prejudice. This appeal followed.

II. THE CITY’S PLEA TO THE JURISDICTION

As a preliminary matter, the City argues that we must affirm the judgment because 

even if the dismissal pursuant to Rule 91a was incorrect, in his brief, Edney has not

properly challenged the trial court’s grant of the City’s plea to the jurisdiction. We have 

reviewed Edney’s notice of appeal, and he appears to indicate that he is appealing both 

the plea and the Rule 91a motion to dismiss. Nonetheless, in his brief, Edney does not 

argue that the trial court improperly granted the City’s plea to the jurisdiction. See TEX. R.

APP. P. 38.1(i). Edney instead only argues that the trial court’s dismissal pursuant to Rule 

91a was improper.

On appeal, Edney does not challenge any of the bases for the trial court’s grant of 

the City’s plea to the jurisdiction; thus, any issues pertaining to the plea to the jurisdiction 

have been waived. See TEX. R. APP. P. 38.1(i); see also Goodenberger v. Ellis, 343 

S.W.3d 536, 539 (Tex. App.—Dallas 2011, pet. denied) (“When a party fails to adequately 

brief a complaint, he waives the issue on appeal.”). As previously stated, the City argued 

that pursuant to the TTCA, it had not waived its immunity to Edney’s claims of negligence, 

libel, assault, malicious prosecution, intentional torts, and violations of the Texas 

Constitution “for illegal search and seizure and violation of freedom of speech and press.” 
7

See TEX. CIV. PRAC. & REM. CODE Ann. § 101.021. The City stated that waiver of 

governmental immunity occurs only if the claims “involved a defect in or negligent use of 

personal property, a defect in or negligent use of real property, or the negligent use of 

motor-driven equipment,” and in this case, Edney has not made any such claims. See id.

The City also argued that “[§] 101.057 of the TTCA expressly preserves governmental 

immunity against intentional torts” such as “[a]ssault, libel, malicious prosecution, and

alleged actions by the police officers involving . . . illegal search and seizure and 

deprivation of the right of freedom of the press and speech . . . .” See id. § 101.057.

Accordingly, without proper briefing with citation to appropriate authority and legal 

argument, we are unable to reverse the grant of the City’s plea to the jurisdiction. See 

TEX. R. APP. P. 38.1(i). Therefore, we overrule Edney’s issues challenging the trial court’s 

grant of the City’s motion for dismissal pursuant to Rule 91a because even if the ruling 

was improper, the trial court dismissed Edney’s claims on the basis that immunity has not 

been waived, which is dispositive.2 See TEX. R. APP. P. 47.1.

III. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA

Justice

Delivered and filed on the

30th day of November, 2023.

2 Moreover, setting aside the issue of immunity, Edney only complains that the trial court 

erroneously dismissed his malicious prosecution and libel claims under Rule 91a. See TEX. R. APP. P. 

38.1(i). Accordingly, construing Edney’s underlying complaint against the City liberally and accepting as 

true his factual allegations, we find that upon our de novo review the City was also entitled to dismissal 

because Edney’s claims were time-barred. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.002 (“A person 

must bring suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one 

year after the day the cause of action accrues.”).