“The Texas Wiretap Statute applies to persons acting in their private capacities, so the statute is not without meaning if it does not apply to governmental entities.”
How later courts described this case
- “The Texas Wiretap Statute applies to persons acting in their private capacities, so the statute is not without meaning if it does not apply to governmental entities.”
- “[The code] creates a meaningful cause of action against private mental health care facilities, a claim that remains viable even if suit against the government is barred.”
- “[B]ecause governmental immunity from suit defeats a trial court’s jurisdiction, whether a trial court has jurisdiction is a question of law subject to de novo review.”
Written by the judges who cited it.
The opinion
Case: 23-40078 Document: 00516960710 Page: 1 Date Filed: 11/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 8, 2023
No. 23-40078 Lyle W. Cayce
____________ Clerk
Brandon Finchum,
Plaintiff—Appellee,
versus
Nacogdoches County,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:21-CV-285
______________________________
Before Wiener, Willett, and Douglas, Circuit Judges.
Per Curiam: *
In this interlocutory appeal, we are asked to decide whether the Texas
Wiretap Act waives governmental immunity. Because the language of the
statute contains no explicit waiver, and because ambiguities should be
resolved in favor of immunity, we hold that it does not.
The facts of this case are undisputed and recited only briefly for
context purposes. While incarcerated in the Nacogdoches County Jail,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40078 Document: 00516960710 Page: 2 Date Filed: 11/08/2023
No. 23-40078
Plaintiff–Appellee Brandon Finchum retained attorneys to investigate and
litigate civil rights claims associated with inmate treatment and jail
conditions. Finchum called his lawyers from the jail on multiple occasions to
discuss his claims. In furtherance of this civil litigation, one of Finchum’s
attorneys submitted requests to Defendant–Appellant Nacogdoches County
for recordings of those and other phone calls under the Texas Public
Information Act. While responding to those open records requests, a non-
lawyer employee of the County Attorney’s office inadvertently listened to a
call between Finchum and his attorney. Finchum subsequently filed suit
under the Texas Wiretap Act (“TWA”). 1
The County moved for summary judgment, asserting that it was
entitled to governmental immunity from Finchum’s TWA claim. The
magistrate judge disagreed, finding that the TWA waived governmental
immunity. Over the County’s objections, the district court adopted the
magistrate judge’s report and recommendation. This interlocutory appeal
followed. We review the denial of summary judgment on the basis of
immunity de novo. Morgan v. Plano Indep. Sch. Dist., 724 F.3d 579, 582 (5th
Cir. 2013) (“[B]ecause governmental immunity from suit defeats a trial
court’s jurisdiction, whether a trial court has jurisdiction is a question of law
subject to de novo review.”).
“Governmental immunity generally protects municipalities and other
state subdivisions from suit unless the immunity has been waived by the
constitution or state law.” Univ. of Tex. M.D. Anderson Cancer Ctr. v.
_____________________
1
Finchum’s original complaint also brought claims for misuse of official
information, in violation of TEX. PENAL CODE ANN. § 39.06, and for violation of the
Federal Wiretap Act. These claims are not relevant to the instant appeal.
2
Case: 23-40078 Document: 00516960710 Page: 3 Date Filed: 11/08/2023
No. 23-40078
McKenzie, 578 S.W.3d 506, 512 (Tex. 2019) (citation omitted). 2 A statute
may only waive immunity by “clear and unambiguous language.” Tex.
Gov’t Code § 311.034. The party suing the government has the burden of
affirmatively showing that the legislature intended to waive immunity.
McKenzie, 578 S.W.3d at 512.
The TWA provides that “[a] party to a communication may sue a
person who . . . intercepts . . . the communication . . . [or] uses or divulges
information . . . obtained by interception.” Tex. Civ. Prac. & Rem.
Code § 123.002. The parties dispute whether the word “person,”
undefined in the statute, includes governmental entities. We turn to the
Texas Code Construction Act to decipher legislative intent. See Tex.
Gov’t Code § 311, et seq. The Construction Act directs that, “unless the
statute or context in which the word . . . is used requires a different
definition,” “person” includes corporation, organization, government or
governmental subdivision or agency. Id. § 311.005(2).
This seems like strong evidence that the legislature intended for the
TWA to allow suits against governmental entities, but another section of the
Construction Act expressly disclaims such interpretation. Section 311.034
states that “the use of ‘person,’ as defined by Section 311.005 to include
governmental entities, does not indicate legislative intent to waive sovereign
immunity unless the context of the statute indicates no other reasonable
construction.” The TWA can be reasonably construed to maintain
immunity, given its continued applicability to private persons and entities.
See Rolling Plains Groundwater Conservation Dist. v. City of Aspermont, 353
S.W.3d 756, 759 (Tex. 2011) (“The [statute] applies to private individuals
_____________________
2
We apply state law to issues of immunity. Brown v. Miller, 519 F.3d 231, 239 (5th
Cir. 2008).
3
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No. 23-40078
and governmental entities alike, so the Code is not without meaning when
construed against an asserted waiver of immunity.”); Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 700 (Tex. 2003) (“[The code] creates a
meaningful cause of action against private mental health care facilities, a
claim that remains viable even if suit against the government is barred.”);
City of Oak Ridge N. v. Mendes, 339 S.W.3d 222, 234 (Tex. App. 2011) (“The
Texas Wiretap Statute applies to persons acting in their private capacities, so
the statute is not without meaning if it does not apply to governmental
entities.”). The inclusion of the word “person” in the TWA does not evince
legislative intent to waive governmental immunity, notwithstanding the
definition in § 311.005 of the Construction Act. 3
The cases Finchum cites in support of the contrary are unpersuasive.
First, although the district court denied the state’s immunity defense at the
motion to dismiss stage in Garza v. Bexar Metropolitan Water District, 639 F.
Supp. 2d 770, 774 (W.D. Tex. 2009), at summary judgment a magistrate
judge reversed course, noting that the district court’s earlier order failed to
“address the impact of § 311.034” on the analysis, No. 08-cv-839-OLG,
2009 WL 10669528, at *16-17 (W.D. Tex. Dec. 9, 2009). 4 Similarly, the
district court in Austin Lawyers Guild v. Securus Technologies, Inc. did not
consider § 311.034 in holding that the TWA waived governmental immunity.
_____________________
3
Furthermore, even without considering § 311.034, the Texas Supreme Court has
held that “the mere incorporation of a definition from one statute into another that includes
both private and governmental entities does not clearly express legislative intent to waive
the governmental entities’ immunity from suit.” City of Midlothian v. Black, 271 S.W. 3d
791, 797 (Tex. App. 2008) (citing Taylor, 106 S.W.3d at 699-700). At most, the TWA
incorporation of the definition in § 311.005 creates an ambiguity as to immunity. See Taylor,
106 S.W.3d at 701. And, ambiguities are to be construed against waiver. Id.
4
That report and recommendation was never adopted by the district court because
the parties agreed to a voluntary dismissal. See Stip., Garza v. Bexar Metro. Water Dist., No.
08-cv-839-OLG (W.D. Tex. Mar. 1, 2010), ECF No. 79.
4
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No. 23-40078
No. 14-cv-366-LY, 2015 WL 10818584, at *10 n.2 (W.D. Tex. Feb. 4, 2015).
The district court in the instant case also failed to address § 311.034. See
Finchum v. Nacogdoches County, No. 21-cv-285-MJT-CLS, 2022 WL
18636946, at *5 (E.D. Tex. Dec. 29, 2022), report and recommendation adopted
by 2023 WL 373879 (E.D. Tex. Jan. 24, 2023). We are unaware of any court
which has cited all of the relevant statutory authority, including § 311.034, in
holding that the TWA waives immunity.
Finchum has not met his burden in showing that the TWA
unambiguously waives governmental immunity. See Mendes, 339 S.W.3d at
234. We therefore hold that Nacogdoches County is immune from suit. The
district court’s contrary decision is REVERSED and Finchum’s TWA
claim against Defendant-Appellant Nacogdoches County is DISMISSED
WITH PREJUDICE.
5