William C. Ferebee v. Law Office of Frank Powell & Frank C. Powell

Opinion issued August 3, 2023

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-22-00681-CV

———————————

WILLIAM C. FEREBEE, Appellant

V.

LAW OFFICE OF FRANK POWELL & FRANK C. POWELL, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Case No. 2022-38247

MEMORANDUM OPINION

The appellees, the Law Office of Frank Powell and Frank C. Powell, sued

William C. Ferebee, the city attorney for the City of Shenandoah, for slander per se.

Powell alleged that Ferebee made defamatory comments about him and his law

practice to the city council during a public city council meeting. Ferebee filed a

motion to dismiss under Section 101.106(f) of the Texas Civil Practice and

Remedies Code, the election-of-remedies provision of the Texas Tort Claims Act.

The trial court denied the motion to dismiss. We reverse the trial court’s order and

render judgment dismissing Powell’s claims against Ferebee.

BACKGROUND

Powell alleged the following facts in his original petition—his live pleading.

Ferebee is the city attorney for the City of Shenandoah. Before the present suit,

Powell and his law firm had filed a separate lawsuit for slander against Ferebee and

other city employees and officials. This separate lawsuit was on the meeting agenda

for the April 27, 2022, city council meeting. It was listed as an item to discuss in a

closed executive session. During the public portion of the meeting, the mayor asked

Ferebee to give a “city attorney update.”

Powell alleged that Ferebee gave the city attorney update and discussed the

separate lawsuit. But Powell asserts that the update was unrelated to the merits or

subject matter of the lawsuit. Instead, Ferebee commented on “preliminary findings”

he had made related to the lawsuit: that Powell had been sanctioned by several courts

and that the Commission for Lawyer Discipline had filed a petition against Powell.

Ferebee went on to read a portion of the petition.

2

Powell then filed this lawsuit against Ferebee individually for slander per se,

a type of defamation.1 Ferebee moved for dismissal under Section 101.106(f) of the

Texas Civil Practice and Remedies Code, arguing that he was acting in the scope of

his employment as city attorney when he made the allegedly defamatory comments,

so the suit was in fact against the City. The trial court denied Ferebee’s motion to

dismiss, and Ferebee filed this interlocutory appeal.

DISCUSSION

Texas Tort Claims Act and Election of Remedies

Governmental immunity protects the state’s political subdivisions from suit

and thus implicates a court’s subject-matter jurisdiction. Hidalgo Cnty. Water

Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178,

182 (Tex. 2023). The Texas Tort Claims Act provides a limited waiver of

governmental immunity. Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017);

see TEX. CIV. PRAC. & REM. CODE § 101.025. The Act’s election-of-remedies

provision requires a plaintiff to decide before filing suit whether a governmental

employee acted independently and is individually liable or whether the employee

acted in his official capacity so that the governmental unit is vicariously liable.

1

See Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 623–24 (Tex. 2018)

(explaining defamation includes slander, slander is defamatory statement expressed

orally, and defamation per se occurs when statement is “so obviously detrimental to

one’s good name that a jury may presume general damages, such as for loss of

reputation”).

3

Laverie, 517 S.W.3d at 752; see TEX. CIV. PRAC. & REM. CODE § 101.106(f). A

governmental employee acts within his official capacity when he acts within the

scope of his employment. See Tex. Adjutant Gen.’s Off. v. Ngakoue, 408 S.W.3d

350, 357 (Tex. 2013). If the plaintiff sues the governmental employee in his official

capacity, the suit is “in all but name only, a suit against the governmental unit.” Id.

In that situation, the Act provides for the employee’s early dismissal:

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.

TEX. CIV. PRAC. & REM. CODE § 101.106(f). In other words, the governmental

employee is entitled to dismissal from the suit if he proves the suit: “(1) [is] based

on conduct within the scope of [his] employment with a governmental unit[;] and

(2) could have been brought against the governmental unit under the Tort Claims

Act.” Laverie, 517 S.W.3d at 752.

Scope of Employment

The Tort Claims Act 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

4

employee by competent authority.” TEX. CIV. PRAC. & REM. CODE § 101.001(5). In

determining whether an employee acted within the scope of employment, the

“critical inquiry” is whether, when viewed objectively, there is a connection between

the employee’s job duties and the alleged tortious conduct. Garza v. Harrison, 574

S.W.3d 389, 401 (Tex. 2019); see also Laverie, 517 S.W.3d at 753. “Simply stated,

a governmental employee is discharging generally assigned job duties if the

employee was doing his job at the time of the alleged tort.” Garza, 574 S.W.3d at

401. Whether an employee acts with ulterior motives, with personal animus, or in

part to serve his own purposes is immaterial, as long as the employee was performing

his job duties. See Laverie, 517 S.W.3d at 753; Anderson v. Bessman, 365 S.W.3d

119, 125–26 (Tex. App.—Houston [1st Dist.] 2011, no pet.). An employee may still

be acting in the scope of employment even if his conduct escalates beyond what his

employer assigned or authorized. Fink v. Anderson, 477 S.W.3d 460, 466 (Tex.

App.—Houston [1st Dist.] 2015, no pet.); see also Celtic Life Ins. Co. v. Coats, 885

S.W.2d 96, 99 (Tex. 1994) (concluding insurance agent was acting within scope of

employment when explaining terms of policy even though he made false

representations about policy that employer did not authorize).

When an employee pursues an “independent course of conduct” unrelated to

his job that does not serve any purpose of his employer, he engages in that conduct

for his own reasons and is not acting within the scope of employment. See Laverie,

5

517 S.W.3d at 754 (discussing RESTATEMENT (THIRD) OF AGENCY § 7.07(2) (2006)).

An employee who deviates from the general nature of his employment to engage in

unauthorized conduct is also not acting within the scope of employment. See

Zarzana v. Ashley, 218 S.W.3d 152, 160 (Tex. App.—Houston [14th Dist.] 2007,

pet. struck) (concluding employee’s selling counterfeit car inspection stickers was

not within scope of employment because employer did not conduct inspections or

sell car inspection stickers); see also Fink, 477 S.W.3d at 467.

An employee who commits a tort like defamation can still be acting within his

scope of employment so long as the tort occurs while the employee is engaged in

conduct to further his employer’s purpose and the act is an escalation of, rather than

a deviation from, his job duties. Fink, 477 S.W.3d at 467–69; see, e.g., Elias v.

Griffith, No. 01-17-00333-CV, 2018 WL 3233587, at *9 (Tex. App.—Houston [1st

Dist.] July 3, 2018, no pet.) (mem. op.) (concluding city employees who allegedly

defamed plaintiff while giving city council update were acting within scope of

employment); Melton v. Farrow, No. 03-13-00542-CV, 2015 WL 681491, at *3

(Tex. App.—Austin Feb. 10, 2015, pet. denied) (mem. op.) (concluding board

members who allegedly defamed plaintiff in board meeting were acting within scope

of employment); Hopkins v. Strickland, No. 01-12-00315-CV, 2013 WL 1183302,

at *4 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. op.)

(concluding mayor who allegedly defamed plaintiff in conversation with another

6

mayor was acting within scope of employment). Our inquiry is not whether the

employee was authorized to commit a tort but whether he was performing his job

duties when he committed the tort. See Fink, 477 S.W.3d at 470; see also Celtic Life

Ins., 885 S.W.2d at 99 (explaining in agency relationship, question is not whether

principal authorized specific wrongful act because then principals would rarely be

liable for agents’ misconduct; rather, proper inquiry is whether agent was acting

within scope of agency relationship when committing wrongful act).

Suit That Could Have Been Brought Against Governmental Unit

A plaintiff’s suit is one that “could have been brought” against a governmental

unit under the Tort Claims Act if: (1) the plaintiff alleges a tort claim; and (2) the

claim is not brought under any other statute that waives immunity, even if the alleged

tort is one for which the Act does not waive immunity. Fink, 477 S.W.3d at 472; see

also Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex. 2011) (“[A]ny tort claim

against the government is brought ‘under’ the Act for purposes of [S]ection 101.106,

even if the Act does not waive immunity.”).

Standard of Review

A governmental employee’s motion to dismiss under Section 101.106(f) is an

assertion of immunity and thus a challenge to the trial court’s subject-matter

jurisdiction. Elias, 2018 WL 3233587, at *5. Accordingly, the motion is similar to a

plea to the jurisdiction, and we review it de novo. See id.; see also Tex. Dep’t of

7

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (stating appellate

courts review challenge to trial court’s subject-matter jurisdiction de novo). When

the motion challenges the plaintiff’s pleadings, we determine if the plaintiff has

alleged facts affirmatively demonstrating subject-matter jurisdiction. See Miranda,

133 S.W.3d at 226. If he has not, but his pleadings do not affirmatively demonstrate

incurable jurisdictional defects, we must give the plaintiff the opportunity to amend

his pleadings. See id. at 226–27. If the pleadings affirmatively negate jurisdiction,

we must dismiss the claims against the employee and need not allow the plaintiff an

opportunity to amend his pleadings. See id. at 227; Manley v. Wise, No. 03-21-

00120-CV, 2022 WL 548266, at *6–7 (Tex. App.—Austin Feb. 24, 2022, no pet.)

(mem. op.) (dismissing claims against city employees because pleadings

affirmatively negated jurisdiction).

Appellate Jurisdiction and Ripeness

As a preliminary matter, we must address Powell’s claims that we lack

appellate jurisdiction and that the appeal is not ripe.

Powell claims we lack appellate jurisdiction over this interlocutory appeal

because the trial court has not denied a summary judgment, citing Section

51.014(a)(5) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. &

REM. CODE § 51.014(a)(5) (authorizing interlocutory appeal from order denying

summary judgment based on assertion of immunity by governmental officer or

8

employee). But the Supreme Court has ruled a party may appeal an order denying

an assertion of immunity under Section 51.014(a)(5), “regardless of the procedural

vehicle used.” Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (per

curiam); see, e.g., City of Webster v. Myers, 360 S.W.3d 51, 54–55 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied) (concluding Section 51.014(a)(5) authorized

appeal from denial of motion to dismiss under Section 101.106); Univ. of Tex. Health

Sci. Ctr. at Houston v. Crowder, 349 S.W.3d 640, 644 (Tex. App.—Houston [14th

Dist.] 2011, no pet.) (same). Therefore, we have appellate jurisdiction over this

interlocutory appeal under Section 51.014(a)(5) because Ferebee appealed the trial

court’s order denying his assertion of immunity.

Powell also argues that this appeal is not ripe because the trial court did not

rule on whether Section 101.106(f) of the Texas Civil Practice and Remedies Code

requires Ferebee’s dismissal. We disagree for two reasons. First, this issue is ripe for

adjudication because Powell’s claimed legal injury has already occurred. The

ripeness doctrine requires a plaintiff to have a “concrete injury,” as opposed to a

mere hypothetical injury contingent on events that have not yet occurred, before

bringing a claim. In re DePinho, 505 S.W.3d 621, 624 (Tex. 2016) (per curiam)

(orig. proceeding) (quoting Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011)).

To determine whether an issue is ripe, “we consider whether, at the time a lawsuit is

filed, the facts are sufficiently developed so that an injury has occurred or is likely

9

to occur, rather than being contingent or remote.” Eagle Oil & Gas Co. v. TRO-X,

L.P., 619 S.W.3d 699, 706 (Tex. 2021) (quoting Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849, 851–52 (Tex. 2000)). Powell’s claimed legal injury has occurred, so

the issue is ripe. Second, by denying Ferebee’s motion to dismiss, the trial court has

ruled on the issue of whether Section 101.106(f) requires his dismissal. The trial

court determined it did not require his dismissal, and we may review that ruling. See

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(5); Graham, 347 S.W.3d at 301; Myers,

360 S.W.3d at 54–55; Crowder, 349 S.W.3d at 644.

Having determined we have appellate jurisdiction and that this issue is ripe

for adjudication, we turn now to the merits of Ferebee’s appeal.

Analysis

In a single issue, Ferebee argues that he was entitled to dismissal under

Section 101.106(f) because Powell’s pleadings demonstrate that Ferebee was acting

within the scope of his employment and because the suit could have been brought

against the City under the Tort Claims Act.

Scope of Employment

Ferebee argues that Powell’s pleadings affirmatively demonstrate that

Ferebee was acting within his scope of employment as city attorney when he made

the allegedly defamatory remarks. We agree.

In his original petition, Powell alleged:

10

• Ferebee is the city attorney for the City of Shenandoah;

• Powell had filed a separate lawsuit for slander against city employees,

elected officials, and Ferebee;

• Ferebee gave a “city attorney update” at the mayor’s request during the

April 27, 2022, city council meeting;

• the separate lawsuit was on the meeting agenda, although it was listed as

an item to be discussed in a closed executive session; and

• Ferebee gave a public update on the separate lawsuit during the city

council meeting, but in doing so he made defamatory comments about

Powell, and his comments were unrelated to the merits or subject matter

of the separate lawsuit.

According to these alleged facts, Ferebee was doing his job at the time of the

alleged tort. See Garza, 574 S.W.3d at 401. Whether Ferebee had ulterior motives,

acted with personal animus, or acted to serve his own purposes is immaterial. See

Laverie, 517 S.W.3d at 753; Anderson, 365 S.W.3d at 125–26. We need not ask

whether Ferebee was authorized to make defamatory comments, only whether he

was performing his job duties when he committed the alleged tort, and he was. See

Fink, 477 S.W.3d at 470. He was addressing the city council as the city attorney and

discussing relevant litigation. Therefore, we agree with Ferebee that Powell’s

pleadings establish Ferebee was acting within the scope of his employment when he

allegedly defamed Powell.

Powell argues that Ferebee deviated from his job duties by commenting on

personal litigation unrelated to city business; Powell argues this was an independent

course of conduct that did not serve any purpose of the City. But again, Powell’s

11

pleadings demonstrate that Ferebee was performing his job duties when he, as

requested by the mayor, gave a litigation update at the city council meeting, and the

separate lawsuit was related to city business because it involved city employees and

officials. Powell has not identified a separate course of conduct—he did not allege

that at any point, Ferebee stopped addressing the city council as the city attorney and

engaged in some other conduct. Instead, he essentially argues that Ferebee’s

personal comments about Powell were off-topic, but regardless of whether Ferebee’s

comments strayed off topic, he was performing his job duties as the city attorney

when he made those comments. See Garza, 574 S.W.3d at 401 (“[A] governmental

employee is discharging generally assigned job duties if the employee was doing his

job at the time of the alleged tort.”). Ferebee’s comments about Powell were an

escalation of, rather than a deviation from, his job duties as city attorney. See Fink,

477 S.W.3d at 466–67 (explaining that employee’s conduct can be within scope of

employment even if conduct escalates beyond what is assigned or permitted but

employee’s conduct that deviates from assigned task is not within scope of

employment); see also Celtic Life Ins., 885 S.W.2d at 99 (noting that insurance agent

had authority to make representations about insurance policies and his false

representations did not take conduct outside scope of authority).

This court has already held that two city employees were acting within the

scope of their employment when they made allegedly defamatory statements in their

12

presentation to the city council during a public city council meeting. Elias, 2018 WL

3233587, at *9. In Elias v. Griffith, the city’s police chief and assistant city manager

gave an update to the city council about implementing a new tow-truck policy, and

each employee made allegedly defamatory comments about the plaintiff, who had

complained about the policy. Id. at *1, *4. Their comments, even if defamatory, were

made in their roles as city employees, at the city manager’s request, and in

furtherance of their job duties. Id. at *7–8. Thus, they were acting within the scope

of their employment when they made the allegedly defamatory comments. Id. at *9.

Powell argues that Elias is distinguishable from the present case because,

unlike the city employees in Elias, Ferebee was not discussing anything related to

city business when he defamed Powell; he was commenting on his personal

litigation, and that was not within the scope of employment. However, the city

employees in Elias were giving an update on a new policy and related police

investigation at the request of the city manager when they gave their personal

thoughts on the plaintiff in that case. Id. at *4. Here, according to Powell’s pleadings,

Ferebee was giving an update on litigation at the request of the mayor when he made

the allegedly defamatory comments about Powell. Like the city employees in Elias,

Ferebee was acting within the scope of his employment as a city employee when he

gave the update to the city council.

13

Finally, Powell argues that Ferebee made a judicial admission in his motion

to dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code (the

Texas Citizens Participation Act), which he filed after the trial court denied his

Section 101.106(f) motion to dismiss. Although the Chapter 27 motion to dismiss is

included in the appellate record, we are limited on appeal to considering the record

upon which the trial court relied in ruling on Ferebee’s Section 101.106(f) motion to

dismiss. See El Paso Sw. Cardiovascular Assocs., P.A. v. Crane, 649 S.W.3d 430,

436–37 (Tex. App.—El Paso 2021, no pet.) (explaining parties to appeal were

limited to record trial court relied on in issuing its ruling and declining to consider

amended pleading filed after trial court ruled on motion to dismiss). In other words,

we may not consider pleadings filed after the trial court ruled on the motion to

dismiss in determining whether the trial court properly denied the motion to dismiss.

In sum, we conclude Ferebee was acting within the scope of his employment

as city attorney when he made the allegedly defamatory statements against Powell.

Suit That Could Have Been Brought Against Governmental Unit

Lastly, we consider whether this suit is one that “could have been brought”

against the City under the Tort Claims Act. See Laverie, 517 S.W.3d at 752; TEX.

CIV. PRAC. & REM. CODE § 101.106(f). Here, Powell has alleged a tort claim, and he

did not sue under any other statute that waives immunity. See Fink, 477 S.W.3d at

472 (stating suit “could have been brought” against governmental unit if plaintiff

14

alleges tort claim and claim is not brought under another statute that waives

immunity). Powell alleged an intentional tort, slander per se, and the Act does not

waive immunity for intentional torts. See TEX. CIV. PRAC. & REM. CODE § 101.057.

But “any tort claim against the government is brought ‘under’ the Act for purposes

of [S]ection 101.106, even if the Act does not waive immunity.” Franka, 332 S.W.3d

at 375; see also Elias, 2018 WL 3233587, at *10 (concluding slander-per-se claim

could have been brought against governmental unit under Tort Claims Act);

Hopkins, 2013 WL 1183302, at *4 (concluding slander claim could have been

brought against governmental unit under Tort Claims Act). Thus, Powell’s claim

could have been brought against the City under the Act.

In sum, Ferebee was entitled to dismissal from the suit because Powell’s

pleadings demonstrate Ferebee was acting within the scope of his employment with

the City when the alleged tort occurred, and the suit could have been brought against

the City under the Tort Claims Act. See Laverie, 517 S.W.3d at 752; TEX. CIV. PRAC.

& REM. CODE § 101.106(f). We sustain Ferebee’s sole issue on appeal.

Because Powell’s pleadings affirmatively negate jurisdiction, we may dismiss

his claims against Ferebee without allowing Powell an opportunity to replead. See

Miranda, 133 S.W.3d at 227 (when pleadings affirmatively negate jurisdiction, “a

plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity

15

to amend”); Manley, 2022 WL 548266, at *6–7 (dismissing claims against city

employees because pleadings affirmatively negated jurisdiction).

CONCLUSION

Ferebee established he was entitled to dismissal from the suit. We therefore

reverse the trial court’s order denying his motion to dismiss and render judgment

dismissing Powell’s claims against Ferebee for lack of jurisdiction.

Gordon Goodman

Justice

Panel consists of Justices Goodman, Landau, and Rivas-Molloy.

16