In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-25-00203-CV
MICHAEL GARNER, HARRY HARDMAN, HOWARD WOOD,
MARSHA PORTER, AND CITY OF CONROE, Appellants
V.
MARIA SOCORRO GORJON, Appellee
On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 24-08-11842
MEMORANDUM OPINION
In this interlocutory appeal, Appellants Michael Garner, Harry Hardman,
Howard Wood, Marsha Porter (collectively the “Individual Defendants”), and the
City of Conroe (the “City”) (collectively the “Defendants” or “Appellants”), appeal
the trial court’s order denying Defendants’ Amended Motion to Dismiss and ruling
in favor of Appellee Maria Socorro Gorjon (“Gorjon” or “Appellee”). See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(5) (permitting an interlocutory appeal of the
1
denial of a motion for summary judgment that is based on an assertion of immunity
by an individual who is an officer or employee of the state or a political subdivision
of the state); Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011)
(recognizing that “an appeal may be taken from orders denying an assertion of
immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle
used[]”); City of Webster v. Myers, 360 S.W.3d 51, 55 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied) (concluding section 51.014(a)(5) authorized appeal from
denial of city’s motion to dismiss under Texas Tort Claims Act’s election of
remedies provision).
As explained below, we reverse the trial court’s order denying the Defendants’
Amended Motion to Dismiss because the trial court failed to dismiss Gorjon’s claims
against the Individual Defendants in their individual capacities, and we remand the
case for further proceedings consistent herewith.
Background
Earlier Pleadings and Transfer of Venue
Gorjon, the former Secretary for the City, filed an Original Petition in Harris
County when her employment with the City was terminated after a dispute arose
regarding her acceptance of applications from two applicants (Curt Maddux and
Todd Yancey) for their names to be placed on the official ballot for City Council
positions up for election on the ballot in the May 4, 2024 general election. Initially,
2
Gorjon asserted claims against the Defendants for violations of the Texas Open
Meetings Act (“TOMA”), negligence per se, conspiracy, willful misconduct, and
against Michael Garner (the Interim City Attorney) for legal malpractice and
defamation. The Defendants filed a Motion for Transfer of Venue. The Defendants
also filed an Original Answer and Motion to Dismiss Pursuant to Section 101.106(a)
and (e) of the Texas Civil Practice and Remedies Code, generally denying Gorjon’s
claims and asserting the affirmative defenses of sovereign and official immunity and
protection and limitations under certain sections of the Texas Tort Claims Act
(“TTCA”). The Defendants specifically alleged that nothing alleged by Gorjon falls
within the TTCA’s limited waiver of immunity and that certain sections of the TTCA
specifically bar Gorjon’s claims. The City moved for dismissal of Gorjon’s claims
against the Individual Defendants pursuant to section 101.106(a) and (e) of the
TTCA because Gorjon sued the City and the Individual Defendants for damages
arising out of the same transactions and sought the same alleged damages.
Gorjon filed a Response to the Defendants’ Motion to Transfer Venue, a First
Amended Petition, and a Response to Defendants’ Motion to Dismiss. In her First
Amended Petition, Gorjon asserted claims against the City for breach of contract and
under the TTCA, she alleged a claim against Defendant Michael Garner for his
alleged legal malpractice and defamation, and Gorjon asserted claims against all the
Defendants for violations of the TOMA and the Texas Whistleblowers Act
3
(“TWA”). The Harris County trial court signed an Agreed Order Granting Motion
to Transfer Venue, transferring the case to Montgomery County. Defendants Harry
Hardman, Howard Wood, and Marsha Porter each filed a sworn declaration stating
that all discussions they would have had concerning the issues made the basis of this
lawsuit would have been in connection with their employment as a Conroe City
Council member, and Michael Garner filed a sworn declaration stating that “[a]ny
and all statements I made concerning the Plaintiff and/or the events made the basis
of this lawsuit at Conroe City Council meetings were made in connection with my
employment as Interim City Attorney for the City of Conroe.”
The Defendants’ Amended Motion to Dismiss
The Defendants filed an Amended Motion to Dismiss. The City argued that
Gorjon’s amended petition fails to avoid the immediate dismissal of the Individual
Defendants under subsections (a) and (e) of section 101.106. In the Amended Motion
to Dismiss, the Individual Defendants also requested dismissal under subsection (f)
of section 101.106 because the actions complained of by Gorjon are actions within
the general scope of employment of the Individual Defendants. According to the
Defendants, section 101.106(f) requires a plaintiff to decide whether an employee
acted independently and is solely liable or acted within the general scope of the
employee’s employment such that the governmental unit is vicariously liable, and
that the purpose of subsection (f) is to quickly dismiss a government employee when
4
the suit should be brought against the employer. The Defendants cited to various
cases 1 in arguing that claims under statutes such as the TOMA that “sound in tort”
fall within the TTCA and are subject to section 101.106(f) dismissal. In their request
for relief, the Defendants sought dismissal of the claims against the Individual
Defendants but not the City.
Gorjon’s Second Amended Petition
Gorjon filed a Second Amended Petition, the live petition at the time the trial
court denied the Defendants’ Amended Motion to Dismiss, and she alleged the same
causes of action as in her First Amended Petition. Gorjon asserted that there are two
political factions at odds with each other in the City - the City’s Mayor, Maddux,
and Yancey on one hand, and then Defendants Wood, Hardman, and Porter on the
other. According to Gorjon, the issue with Maddux’s and Yancey’s applications was
that the notary (Gorjon) notarized the applicants’ signatures outside of their
presence, which Gorjon contends is the same way the City’s councilmembers have
had their signatures notarized since being elected and it is the same process on which
Gorjon was trained and has used for more than nineteen years as the City Secretary.
Gorjon alleges in the petition that this was the first time she had to deal with concerns
1
Rodriguez v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 735-37 (5th Cir. 2010); Garza v. Harrison, 574 S.W.3d 389, 401 (Tex. 2019); Lopez v. Serna, 414 S.W.3d 890, 894 (Tex. App.—San Antonio 2013, no pet.); Wheeler v. Law Off. of Frank Powell, No. 01-22-00479-CV, 2023 Tex. App. LEXIS 6687, at *19 (Tex. App.—Houston [1st Dist.] Aug. 29, 2023, no pet.) (mem. op).
5
about the applications and, as City Secretary, she sought advice from the Texas
Secretary of State and Garner (the Interim City Attorney) as to how to handle the
situation. Gorjon contends she believed Garner was her attorney, that he never made
her believe otherwise or that the City had a contrary position, and that she relied on
Garner’s and the Secretary of State’s advice in accepting the two contested
applications. Gorjon alleges that Garner then filed suit on behalf of the City against
her, and two candidates running for the same seats as the applicants also filed suits
against Gorjon. Gorjon asserts that mandamus proceedings ensued, and that
ultimately five courts exonerated her. According to Gorjon, a demand letter was sent
to the City on April 4, 2024, for, among other things, the payment of her legal fees
as reimbursement or indemnity per the City’s Charter. Gorjon alleges that four days
later she was “placed on administrative leave with pay for medical reasons” because
she had demanded damages for mental anguish caused by the City suing her and
creating a hostile work environment, and that she did not ask to be on leave but
wanted to work through the general election. Gorjon asserts that without a notice of
a meeting, a meeting, or a vote by City Council, her employment was terminated.
Gorjon asserts claims against the City for breach of contract and under the
TTCA for Defendant Garner’s alleged legal malpractice and defamation, and Gorjon
asserted claims against the Defendants for violating sections of the TWA and the
TOMA. According to Gorjon, the Individual Defendants and “ultimately the City”
6
violated provisions of the TOMA by conspiring to file suit against Gorjon and
conspiring to and actually modifying Gorjon’s employment without an official
meeting or council vote. Gorjon alleged that she was protected by the TWA and that
the Individual Defendants and the City violated section 554.002 of the Texas
Government Code by retaliating against Gorjon for reporting a violation of law.
Gorjon’s Corrected Response to the Defendants’ Amended Motion to Dismiss
Gorjon argued in a Corrected Response to the Defendants’ Amended Motion
to Dismiss that her claims are not subject to the TTCA and that
“[f]or clarification, if necessary,” she “reformats her causes of action in her Second
Amended Petition, filed herewith, to make it clear that her claims under the [TTCA]
are against the City and claims against the individuals are under TOMA and the
TWA.” Gorjon conceded that her claims as to Defendant Garner’s malpractice and
defamation are within the TTCA, but she alleged her TOMA and TWA claims
against Defendant Garner do not fall within the TTCA and that she amended her
petition to allege defamation and malpractice claims against the City as Garner’s
employer.
The Defendants’ Reply to Gorjon’s Corrected Response to the Defendants’ Amended Motion to Dismiss
In their Reply to Gorjon’s Corrected Response, the Defendants argue that
Gorjon conceded in her Response and her Second Amended Petition that her only
claims remaining against the Individual Defendants are her TWA claims and TOMA
7
claims, but the Defendants assert that an individual cannot be sued under the TWA
and that section 101.106 prevents a claim being brought against both the City and
the Individual Defendants under the TOMA and that Gorjon’s TOMA claims sound
in tort and must be dismissed.
The Trial Court’s Order Denying the Motion to Dismiss
The trial court denied Defendants’ Amended Motion to Dismiss, finding that
“the individual defendants named in the case are sued under statutes outside the
purview of the Texas Tort Claim Act and are therefore, properly named in the
lawsuit.”
Issues on Appeal
The Defendants only raise two issues on appeal. In their first issue, the
Defendants argue that the trial court erred in not dismissing Gorjon’s Whistleblower
Act claim against the Individual Defendants because the Whistleblower Act only
provides a remedy against state or local governmental entities and not against
individuals employed by those entities. In their second issue, the Defendants argue
that the trial court erred in not dismissing Gorjon’s Open Meetings Act claim against
the Individual Defendants because it sounds in tort and she only seeks monetary
damages.
8
Standard of Review
We review the Defendants’ motion to dismiss as we would a plea to the
jurisdiction. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (“We
look to the substance of a plea for relief to determine the nature of the pleading, not
merely at the form of title given to it.”); see also Kosoco, Inc. v. Metro. Transit Auth.
of Harris Cnty., No. 01-14-00515-CV, 2015 Tex. App. LEXIS 8773, at *6 (Tex.
App.—Houston [1st Dist.] Aug. 20, 2015, no pet.) (mem. op.) (A motion to dismiss
for lack of jurisdiction is the “functional equivalent” of a plea to the jurisdiction.);
Anderson v. Bessman, 365 S.W.3d 119, 123-24 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (analyzing motion to dismiss under section 101.106(f) using standard
of review for plea to jurisdiction).
A plea to the jurisdiction challenges the subject-matter jurisdiction to hear the
case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see also Tex.
A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (sovereign
immunity generally extends to governmental officials sued in their official capacities
because that is merely “another way of pleading an action against the entity of which
[the official] is an agent[]”); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,
374 (Tex. 2006) (sovereign immunity from suit deprives trial court of subject-matter
jurisdiction). The existence of subject-matter jurisdiction is a question of law that
we review de novo. State ex. rel State Dep’t of Highways & Pub. Transp. v.
9
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Anderson, 365 S.W.3d at 123. The
plaintiff bears the burden to allege facts affirmatively demonstrating the trial court’s
subject-matter jurisdiction over the case. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993); Anderson, 365 S.W.3d at 124. In deciding a plea
to the jurisdiction, a court may not consider the case’s merits, but only the plaintiff’s
pleadings and evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v.
Brown, 80 S.W.3d 549, 555 (Tex. 2002); Anderson, 365 S.W.3d at 124.
Gorjon’s Whistleblower Act Claim
In their first issue, the Defendants argue that the trial court erred in not
dismissing Gorjon’s TWA claim against the Individual Defendants because the Act
only provides a remedy against state or local governmental entities and not against
individuals employed by those entities. Citing to Texas Department of Human
Services v. Green, 855 S.W.2d 136, 142 (Tex. App.—Austin 1993, writ denied), the
Defendants contend that the TWA does not create a private cause of action against
employees of a governmental entity. The Defendants argue that, because Gorjon has
failed to plead a cognizable claim under the TWA against the Individual Defendants,
they retain their immunity from suit for that claim, and the trial court lacks
jurisdiction over the Individual Defendants.
Gorjon argues that the Defendants waived their issues by failing to include a
sufficient Statement of Facts in their brief on appeal. Gorjon contends that her TWA
10
claim is not subject to the TTCA’s election of remedies provisions and that her TWA
claim waives sovereign immunity independent from the TTCA. Gorjon argues that
the Defendants’ reliance on Green is misplaced because the statutes cited in that case
were repealed in 1993 and that the current version of TWA does not expressly
prevent a claimant from holding an individual liable under the TWA. Gorjon asserts
that the Individual Defendants violated the TWA because they did not act on behalf
of the City when they retaliated by terminating Gorjon’s employment with the City.
According to Gorjon, because the Individual Defendants did not follow proper
procedures in altering her employment, they did not act on behalf of the City.
We first address Gorjon’s assertion that the Defendants waived their appellate
issues by failing to include a sufficient Statement of Facts in their appellate brief.
Gorjon relies on Rule 38.1(g) of the Texas Rules of Appellate Procedure and this
Court’s opinion in Telegina v. Nechayuk, No. 09-22-00383-CV, 2024 Tex. App.
LEXIS 8633, at **3-8 (Tex. App.—Beaumont Dec. 12, 2024, no pet.) (mem. op.),2
in arguing that the appellate brief of the Defendants contains an inadequate
Statement of Facts and thereby the Defendants have presented nothing for review
and have waived all of their appellate issues.
2
This Court’s Telegina opinion was supplemented with opinion No. 09-22-00383-CV, 2025 Tex. App. LEXIS 67 (Tex. App.—Beaumont Jan. 9, 2025, no pet.) (mem. op).
11
Texas Rule of Appellate Procedure 38.1(g) provides that a brief “must state
concisely and without argument the facts pertinent to the issues or points
presented[,]” and “[t]he statement must be supported by record references.” Tex. R.
App. P. 38.1(g). In Telegina, this Court based its reasoning for concluding that
Telegina waived certain issues due to inadequate briefing on the following: the
clerk’s record in that appeal included twenty-three volumes and one supplemental
volume, and exceeded 39,000 pages; the reporter’s record included twelve volumes
and one supplemental volume; Telegina’s brief raised what she labeled as “102
issues,” containing no citations to the record other than references the dates motions
or orders were filed; in support of each of her points, she “incorporate[d] by
reference” legal arguments she made in trial court filings; and she failed to explain
how she preserved error on each of her issues. 2024 Tex. App. LEXIS 8633, at **4-5. This Court also noted that we must reasonably construe briefs so that the right to
appeal is not lost by waiver and that we hesitate to resolve cases on procedural
defects. Id. at *6. Telegina is distinguishable from this appeal. Here, the Defendants’
Statement of Facts paragraph included in their appellate brief explained the subject
matter of the lawsuit, who the parties were, and the subject matter of the appeal.
Because this appeal is straightforward, a lengthy Statement of Facts is not necessary.
Elsewhere in their appellate brief, the Defendants provided a procedural background
with appropriate citations to the record and arguments for their two issues on appeal
12
with appropriate citations to the record and to legal authorities in support of those
arguments. Accordingly, the Defendants have not waived their issues on appeal.
Next, we address whether the TWA provides a remedy against individuals
employed by state or local governmental entities. The TWA prohibits a
governmental entity from terminating or taking any adverse employment action
against an employee who in good faith reports to an appropriate law enforcement
authority a violation of law by the entity or a public employee. Montgomery Cnty. v.
Park, 246 S.W.3d 610, 612 (Tex. 2007) (citing Tex. Gov’t Code Ann. §§ 554.001-.010). The TWA provides that “[a] public employee who alleges a violation of [the
Act] may sue the employing state or local governmental entity for the relief provided
by [the Act,]” and “[s]overeign immunity is waived and abolished to the extent of
liability for the relief allowed under [the Act] for a violation of [the Act].” Tex. Gov’t
Code Ann. § 554.0035. “[T]he elements of a whistleblower claim are jurisdictional
facts necessary for ‘determining whether the [plaintiff’s] claim falls within the
jurisdictional confines of section 554.0035.’” City of Fort Worth v. Pridgen, 653
S.W.3d 176, 182 (Tex. 2022) (quoting State v. Lueck, 290 S.W.3d 876, 882 (Tex.
2009)). When a statutory prerequisite to suit is not met, the suit may be properly
dismissed for lack of jurisdiction. City of Madisonville v. Sims, 620 S.W.3d 375, 378
(Tex. 2020).
13
“For waiver of immunity to apply in these cases, the plaintiff must sufficiently
allege that he or she was a public employee, the defendant was a state or local
governmental entity, that the plaintiff reported a violation of law to the appropriate
law enforcement agency in good faith, and that the plaintiff’s report was the but-for
cause of the defendant’s adverse employment action.” Perez v. Weslaco Indep. Sch.
Dist., No. 13-15-00033-CV, 2016 Tex. App. LEXIS 7988, at *8 (Tex. App.—Corpus
Christi – Edinburg July 28, 2016, pet. dism’d) (mem. op.) (citing Tex. Gov’t Code
Ann. § 554.002(a); Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.
1995); Scott v. Godwin, 147 S.W.3d 609, 621 (Tex. App.—Corpus Christi 2004, no
pet.)). The TWA creates a private cause of action against the employing “state or
local governmental entity[.]” See Tex. Gov’t Code Ann. § 554.002(a). “However,
the Act limits personal liability for individual defendants to a civil penalty.”
Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 668 (Tex. App.—Corpus
Christi 2004, no pet.) (citing Tex. Gov’t Code Ann. § 554.008(e) 3). Gorjon cites no
legal authority in support of her argument that the TWA allows a private claimant to
sue an individual government employee for liability under the Act, and we reject
that argument. Under the TWA, Gorjon has no private right of action against the
3
Subsection (e) of section 554.008 of the Texas Whistleblower Act provides that “[t]he personal liability of a supervisor or other individual under this chapter is limited to the civil penalty that may be assessed under this section[,]” and subsection (b) states that “[t]he attorney general or appropriate prosecuting attorney may sue to collect a civil penalty under this section.” Tex. Gov’t Code Ann. § 554.008(b), (e).
14
Individual Defendants in their individual capacities. See id. at 669 (under the TWA,
appellant has no private right of action against any of the appellees in their individual
capacities); Weslaco Indep. Sch. Dist. v. Perez, No. 13-12-00590-CV, 2013 Tex.
App. LEXIS 9243, at **8-9 (Tex. App.—Corpus Christi - Edinburg July 25, 2013,
no pet.) (mem. op.) (concluding that an aggrieved employee cannot sue a
governmental employee in his individual capacity under the TWA); Looper v.
Houston Cmty. College Sys., No. 14-07-00040-CV, 2007 Tex. App. LEXIS 9291, at
*16 n.3 (Tex. App.—Houston [14th Dist.] Nov. 29, 2007, pet. denied) (mem. op.)
(“[I]t is well settled under Texas law that individuals, as opposed to government
entities, are not covered by the TWA.”) (citing Austin v. HealthTrust, Inc.-The
Hospital Co., 967 S.W.2d 400 (Tex. 1998) (declined to recognize a “private
whistleblower” cause of action); Alejandro, 131 S.W.3d at 668-69 (upheld the
district court’s grant of a directed verdict on the plaintiff’s claims against the
individual defendants because there was no private right of action against the
officials in their individual capacities)); see also Marbley v. Teamster Loc. 988, No.
4:22-cv-3396, 2023 U.S. Dist. LEXIS 127194, at **16-17 (S.D. Tex. July 24, 2023)
(defendants’ motion to dismiss plaintiff’s TWA claim granted because “none of the
[individual] [d]efendants may be characterized as a state governmental entity or
local governmental entity—the only categories of defendants subject to the TWA’s
protections[]”); Woodruff v. McLennan Cnty., Tex., No. W-07-CA-256, 2007 U.S.
15
Dist. LEXIS 105579, at **9-10 (W.D. Tex. Nov. 1, 2007) (granting the defendant’s
motion to dismiss the plaintiff’s TWA claims against the individual defendants
because “Plaintiff concedes that the Texas Whistleblower Act does not apply to
individuals[]”); Carlisle v. Trudeau, No. 4:04CV309, 2006 U.S. Dist. LEXIS 15660,
at *27 (E.D. Tex. Mar. 14, 2006) (concluding that to the extent the plaintiff intends
to sue any of the individual defendants under the TWA, the plaintiff’s claim should
be dismissed) (citing Rodriguez v. Laredo Indep. Sch. Dist., 82 F.Supp.2d 679, 688
(S.D. Tex. 2000); Patterson v. Hous. Auth. of Pearsall, No. SA-05-CA-1155-XR,
2006 U.S. Dist. LEXIS 59006, at *32 (W.D. Tex July 27, 2006) (concluding that the
former employee has no private right of action against housing authority board
members in their individual capacities because the TWA does not provide a private
cause of action against a supervisor or other individual and a supervisor who violates
the TWA may be sued by the attorney general or appropriate prosecuting attorney
for a civil penalty); Hoskins v. Kaufman Indep. Sch. Dist., No. 3:03-CV-0130-D,
2003 U.S. Dist. LEXIS 11143, at **13-14 (N.D. Tex. June 30, 2003) (rejecting the
holding in Dallas Independent School District v. Lee, stating that Lee lacks
precedential value, and noting that federal cases interpreting the TWA have
concluded that individuals cannot be liable under the Act); Rodriguez, 82 F.Supp.2d
at 688 (the TWA does not create a cause of action against employees of a public
agency but instead creates a cause of action against state or local governmental
16
agencies; “[a]bsent the creation of such a cause of action by the Texas state
legislature, allowing [the plaintiff] to proceed is not within this Court’s province[]”);
but see Dallas Indep. Sch. Dist. v. Lee, No. 05-98-02145-CV, 1999 Tex. App. LEXIS
6673, at **7-8 (Tex. App.—Dallas Sept. 2, 1999, pet. denied in part and dismissed
for want of jurisdiction in part) (not designated for publication) (declining to adopt
the appellants’ argument that the TWA only creates a cause of action against the
governmental entity and not individual employees because the appellate court
“fail[ed] to understand how the TWA could only create a cause of action against the
entity, yet authorize civil penalties against the supervisor[]”); Thompson v. City of
Arlington, 838 F.Supp. 1137, 1153 (N.D. Tex. 1993) (the TWA “provides no private
right of action against a supervisor or co-worker[]”). Because no private cause of
action by Gorjon against the Individual Defendants exists under the TWA, the trial
court erred in denying the Defendants’ motion to dismiss Gorjon’s Whistleblower
Act claim against the Individual Defendants. We sustain issue one.
Gorjon’s Open Meetings Act Claim
In their second issue, the Defendants argue that the trial court erred in not
dismissing Gorjon’s TOMA claim against the Individual Defendants because it
sounds in tort and she only seeks monetary damages. The Defendants also assert that
statutory claims sounding in tort may be subject to dismissal under section
101.106(f) of the TTCA. According to the Defendants, because Gorjon is seeking
17
monetary damages for past lost wages and retirement benefits, she has converted her
TOMA claim to a tort claim that implicates governmental immunity, and section
101.106 of the Texas Civil Practice and Remedies Code requires that Gorjon’s
TOMA claim against the Individual Defendants be dismissed.
Gorjon argues that her TOMA claim is not controlled by the TTCA and is not
subject to its election of remedies provision because the TOMA is an independent
statutory provision which waives immunity. According to Gorjon, “simply because
[she] alleged tort[ claims] against employees of the City does not consequently
subject [her] independent statutory claims to the election of remedies provisions of
the [TTCA] when those claims would otherwise not fall under the [TTCA].”4
Section 101.106 of the TTCA describes the circumstances under which a suit
against an individual government employee must be dismissed. See Tex. Civ. Prac.
& Rem. Code Ann. § 101.106. Subsection (f) of section 101.106, the election of
remedies provision of the TTCA, provides:
(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
4
The Defendants cited to Rodriguez, 628 F.3d at 735-37. The Rodriguez Court noted that the Texas Supreme Court has held that causes of action based on statutes containing their own waiver of immunity do not fall under the Act, and that the Texas Supreme Court has never barred all statutory claims from falling under the Tort Claims Act. 628 F.3d at 735. The Fifth Circuit Court of Appeals concluded in Rodriguez that statutory claims may fall under the TTCA provided they are tort claims and they do not contain independent waivers of sovereign immunity. Id. at 735-36. Gorjon argues the Rodriguez case actually supports Gorjon’s position that the TOMA claims do not fall under the TTCA.
18
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 Ann. § 101.106(f). “[A] defendant is entitled to
dismissal upon proof that the plaintiff’s suit is (1) based on conduct within the scope
of the defendant’s employment with a governmental unit and (2) could have been
brought against the governmental unit under the Tort Claims Act.” Laverie v.
Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017) (citing Franka v. Velasquez, 332
S.W.3d 367, 369 (Tex. 2011); Anderson, 365 S.W.3d at 124).
Requirement that the claim is Based on Conduct within the Scope of Defendant’s Employment
As to her Open Meetings Act violation claim against the Individual
Defendants, Gorjon on appeal does not address whether the Individual Defendants
were acting within the scope of their employment when they allegedly violated the
TOMA. The TTCA defines “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 Ann. § 101.001(5). The Act
focuses on “performance . . . of the duties of an employee’s office or employment,”
which calls for an objective assessment of whether the employee was doing her job
19
when the employee committed an alleged tort, not the employee’s state of mind
when the employee was doing it. Laverie, 517 S.W.3d at 753 (quoting Tex. Civ.
Prac. & Rem. Code Ann. § 101.001(5)). The scope-of-employment analysis requires
the following inquiry: Is there a connection between the employee’s job duties and
the alleged tortious conduct? See id. “The answer may be yes even if the employee
performs negligently or is motivated by ulterior motives or personal animus so long
as the conduct itself was pursuant to [the employee’s] job responsibilities.” See id.
“Government employees are not required to prove their subjective intent behind an
allegedly tortious act in order to be dismissed from a suit pursuant to the electionof-remedies provision.” Id. at 756.
Here, Gorjon alleges in her Second Amended Petition that the Individual
Defendants violated the provisions of the TOMA by filing suit against her on behalf
of the City and modifying her employment without an official meeting or council
vote. There is clearly a connection between the job duties of the Individual
Defendants, who are the Interim City Attorney and City Council members, and the
alleged wrongful acts asserted by Gorjon, and therefore, we conclude her TOMA
claim is based on conduct within the general scope of the Individual Defendants’
employment.
20
Requirement that the Claims Could Have Been Brought under the TTCA
We next consider whether Gorjon’s tort claims “could have been brought
under [the TTCA.]” See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). The Texas
Supreme Court has held that a claim is considered one that “could have been
brought” under the TTCA if it (1) “is in tort” and (2) is not brought “under another
statute that independently waives immunity[,]” even if the particular tort alleged is
one for which immunity has not been waived. Franka, 332 S.W.3d at 379, 381.
Section 101.106(f)’s requirement that the claim be a “tort claim” is not limited
to negligence and other common law torts. Fink v. Anderson, 477 S.W.3d 460, 472
(Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing Tex. Adjutant Gen.’s Off. v.
Ngakoue, 408 S.W.3d 350, 356-57 (Tex. 2013) (stating that claim could have been
brought under the TTCA if “plaintiff had a tort claim to assert against the
government”); Williams v. Nealon, 394 S.W.3d 9, 11 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied) (“any tort action” is one that could have been brought under
the TTCA)). A “tort claim” can include intentional torts. Id. (citing Alexander v.
Walker, 435 S.W.3d 789, 792 (Tex. 2014)). A “tort claim” can also include claims
that are tort based but pleaded as statutory violations. Id. (citing Lopez v. Serna, 414
S.W.3d 890, 894 (Tex. App.—San Antonio 2013, no pet.)). Instead of focusing on
the mechanism for prosecuting the claim, the focus is on whether the claim “sounds
in tort.” Id. (citing Rodriguez v. Christus Spohn Health Sys. Corp., 628 F.3d 731,
21
735-37 (5th Cir. 2010) (rejecting argument that the TTCA is limited to “common
law torts only” and concluding that various statutory claims “sound in tort” and,
therefore, may be subject to dismissal under section 101.106(f), including claims
under the Medical Liability Act, Sexual Exploitation by Mental Health Services
Provider Act, and the Patient’s Bill of Rights)). Furthermore, this Court and at least
one other interim court of appeals held that statutory theft claims constitute claims
that could have been brought under the TTCA. See Mason v. Wood, No. 09-12-00246-CV, 2013 Tex. App. LEXIS 2692, at **6-7 (Tex. App.—Beaumont Mar. 14,
2013, no pet.) (mem. op.); Lopez, 414 S.W.3d at 894. Artful pleading will not change
the tort nature of the claim. See Mason, 2013 Tex. App. LEXIS 2692, at *7 (when
discussing whether appellant’s theft claim was one that could have been brought
under the TTCA, this Court explained that “plaintiff cannot, through artful pleading,
make a common law tort claim a statutory claim under the Theft Liability Act.”).
Here, Gorjon’s factual allegations indicate that she claims the Individual
Defendants conspired to maliciously prosecute her and wrongfully terminate her,
and she seeks monetary damages for past lost wages and retirement benefits. We
conclude Gorjon’s allegations that the Individual Defendants violated the Open
Meetings Act “sounds in tort” and is a tort claim for purposes of section 101.106(f)
even though Gorjon alleged that this claim is a statutory violation of the TOMA. See
Fink, 477 S.W.3d at 472-73 (claim for misrepresentation pleaded as violation of the
22
Securities Act “sounds in tort” and is a tort for purposes of section 101.106(f));
Navarro v. Grant Thornton, LLP, 316 S.W.3d 715, 718 (Tex. App.—Houston [14th
Dist.] 2010, no pet.) (characterizing claims brought under Texas Securities Act as
“tort claims” for purposes of section 101.106(f)); see also Chu v. Hong, 249 S.W.3d
441, 444 (Tex. 2008) (conspiracy is a derivative tort); Hartman v. Broussard, No.
09-19-00053-CV, 2020 Tex. App. LEXIS 1062, at *13 n.6 (Tex. App.—Beaumont
Feb. 6, 2020, no pet.) (mem. op.) (malicious prosecution is an intentional tort);
Luengas v. Univ. of N. Tex., No. 2-06-036-CV, 2006 Tex. App. LEXIS 8686, at *6
(Tex. App.—Fort Worth Oct. 5, 2006, no pet.) (mem. op.) (wrongful termination is
an intentional tort).
The second requirement for a TOMA violation to be a claim that could have
been brought under the TTCA is that the statute not contain an independent waiver
of immunity. See Franka, 332 S.W.3d at 381 (claim brought “under another statute
that independently waives immunity[]” is not subject to section 101.106(f));
Kelemen v. Elliott, 260 S.W.3d 518, 522-23 (Tex. App.—Houston [1st Dist.] 2008,
no pet.) (alleged violation of the TWA and Texas Commission on Human Rights
Act were not claims that could have been brought under the TTCA because each
contained independent waiver of immunity); Hamilton v. Pechacek, No. 02-12-00383-CV, 2014 Tex. App. LEXIS 3096, at *14 n.7 (Tex. App.—Fort Worth Mar.
20, 2014, no pet.) (mem. op.) (“‘under this chapter’ language does not include claims
23
based on alternate, independent statutes that waive sovereign or governmental
immunity[]”).
Gorjon fails to direct this Court to any provision of the TOMA in support of
her argument that the TOMA independently waives immunity as to her claims
against the Individual Defendants. The Supreme Court of Texas confirmed in Town
of Shady Shores v. Swanson that the TOMA confines the Legislature’s waiver of
immunity to those forms of relief that the statute expressly affords. 590 S.W.3d 544,
554-55 (Tex. 2019) (TOMA “contains a clear and unambiguous waiver of immunity
from suits seeking injunctive and mandamus relief.”). TOMA authorizes mandamus
and injunctive relief, resulting from a knowing disclosure of certain information
from closed meetings, but it does not authorize Gorjon’s TOMA claim for money
damages under the facts she alleges. See Tex. Gov’t Code Ann. §§ 551.142(a)
(mandamus and injunctive relief), 551.146(a)(2) (knowing disclosure of information
from a closed meeting); see also Swanson, 590 S.W.3d at 554-55 (TOMA does not
waive governmental immunity for declaratory judgment claims because the only
relief afforded under the TOMA is injunctive and mandamus relief); Cook v. Hedtke,
No. 03-17-00663-CV, 2018 Tex. App. LEXIS 2466, at **9-10 (Tex. App.—Austin
Apr. 6, 2018, no pet.) (mem. op.) (plaintiff’s claim for nominal damages not
authorized by TOMA). Because Gorjon’s TOMA claim against the Individual
24
Defendants seeks relief not authorized under the Act, the Act’s waiver of immunity
does not extend to that claim. See Swanson, 590 S.W.3d at 554-55.
We conclude that Gorjon’s suit against the Individual Defendants was based
on conduct within the general scope of their employment and could have been
brought under the TTCA against the City, Gorjon’s suit should be considered to be
against the Individual Defendants only in their official capacities and they are
entitled to dismissal of the claims against them in their individual capacities pursuant
to subsection (f). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f); Laverie, 517
S.W.3d at 752. We sustain issue two.
Conclusion
We have addressed the two issues before us which both relate only to the
Individual Defendants. We do not express any opinion on the claims made against
the City, or claims, if any, that Gorjon may have asserted for the City’s alleged
vicarious liability for the actions of the Individual Defendants and Defendant Garner.
Gorjon’s claims against the City remain pending in the trial court. We reverse the
trial court’s order denying the Defendants’ Amended Motion to Dismiss because the
trial court failed to dismiss Gorjon’s claims against the Individual Defendants in
their individual capacities, and we remand the case for further proceedings consistent
herewith.
25
REVERSED AND REMANDED.
LEANNE JOHNSON
Justice
Submitted on October 24, 2025
Opinion Delivered October 15, 2026
Before Johnson, Wright and Chambers, JJ.
26