# Suran Wije v. David A. Burns, the University of Texas at Austin, Jane Doe, and John Doe

> Texas Court of Appeals, 1st District (Houston) · September 3, 2020

URL: https://www.frixlaw.com/law-library/cases/4563330

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** September 3, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4563330

## How later opinions describe it (automated extraction)

- stating “principle that claims against state officials—like all claims—must be properly pleaded in order to be maintained”
- explaining that TTCA’s “limited waiver does not apply to intentional torts”

## Opinion text

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,
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 court 2 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.”).
2
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.
3
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

4
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.
5
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.
6
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).
7
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
8
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.
9
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

10
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”).

11
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
12
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.”)).
13
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
14
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 “internal-
only” 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).

15
(“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.
16
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.

17
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
18
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.

19
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.

20
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.
21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4563330. Public record. Not legal advice.