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Click here for the full text of this decision FACTS:Detective Jacob Schauer was working as a security guard at Garden Gate Apartments when he was asked to issue a trespass warning to a registered sex offender named “Johnson.” While investigating, Schauer ran across Charles Terrell Morgan near the complex laundromat. Schauer asked Morgan if he was Johnson, and then asked for identification. Though the length of time it took Morgan to respond is disputed, as is whether Morgan used profanities, it is not disputed that after their confrontation, Schauer arrested Morgan for disorderly conduct and failure to identify himself to a police office. Morgan claimed Schauer dragged him out of the laundromat, handcuffed him, slammed his head against the hood of a car and smashed him into the ground. Morgan filed suit against Schauer in his official capacity, then, in an amended petition, against the city as well. He alleged that Schauer was guilty of assault, negligence and trespass to the person, as (1) an agent of Garden Gate, and, alternatively, (2) as an individual, and (3) as an agent of the Alvin Police Department. The trial court granted the city’s combined motion for summary judgment and alternative plea to the jurisdiction, which was based on the assertion that it was the real party in interest for the claims brought against Schauer in his official capacity. The trial court severed the claims against the city from the ones against Schauer. Morgan, thus, appeals. HOLDING:Affirmed. The court discusses first the city’s immunity for claims against Schauer in his official capacity, noting that a suit against a police officer in his official capacity is merely another way of pleading a suit against the governmental entity of which the officer is an agent. The suit, therefore, is the same as one brought directly against the state, and in such cases, the governmental entity is the real party in interest. Although Morgan did not directly name the city, he sought to impose liability on the city for the incidents forming the basis of the underlying suit. The court thus concludes that Morgan has asserted claims against Schauer in his official capacity as a police officer for the city, and, thus, with respect to those claims, that the city is a real party in interest. The court then analyzes the capacity in which Schauer acted when he confronted and arrested Morgan to see whether he was acting in his official capacity. The court notes both that if an off-duty officer observes a crime, as a matter of law, he becomes an on-duty officer for purposes of determining whether or not a private employer is vicariously liable for the officer’s actions, and that when an officer enforces general laws, he acts in the course and scope of his employment as a police officer. Looking first at Morgan’s assault allegations, the court finds it falls squarely within the exclusion of claims arising out of intentional torts found in Civ. Prac. & Rem. Code �101.057. Therefore, any waiver of immunity under the Tort Claims Act is precluded, as applied to the city, and the city has no liability for Schauer’s alleged assault of Morgan. Morgan’s negligence claim against Schauer focusing on Schauer’s initiating a physical confrontation with Morgan is, in essence, an intentional tort claim and does not fall within the Tort Claims Act’s waiver of governmental immunity, either, the court finds. And, the trespass to the person claim is part and parcel of Morgan’s assault claim. The court then reviews whether Schauer was working in his official capacity or as an employee of Garden Gate when he had his confrontation with Morgan. Regardless of Schauer’s employment status at the time of the incident, the court says, Morgan’s pleadings cannot allege a separate claim against the city. If Schauer acted within the course and scope of his employment of the city, then, as discussed above, the city has sovereign immunity. If Schauer did not act within the course and scope of his employment with the city, then, as a matter of law, the city is not vicariously liable for his acts, Morgan cannot allege a claim against the city, and Schauer cannot claim official immunity. “In either instance, whether Schauer acted within the course and scope of his employment with the City or not, [Morgan] has no claim against the City. The trial court, therefore, properly granted summary judgment to the City. Schauer’s employment status at the time of the incident remains an issue for determination in the case against Schauer in the trial court.” The court also holds that the trial court did not err in denying what the court construes to be a motion for continuance. The motion was not supported by an affidavit, as required by T.R.Civ.P. 251. Nor was it error for the trial court to deny Morgan’s motion to abate the city’s summary judgment. Under these circumstances, however, a motion to abate is not a proper procedural tool. A motion to abate is used to challenge the plaintiff’s pleadings by alleging facts outside the pleadings that prove the suit cannot go forward in its present condition. In this case, the existence of a “fact issue” regarding Schauer’s capacity at the time of the underlying incident is not an impediment to the continuation of the suit since the city is immune as a matter of law from liability for all claims asserted against Schauer in his official capacity, and the suit continues below on any claims against Schauer in his individual capacity or against Garden Gate. OPINION:Sherry Radack, C.J.; Radack, C.J., Alcala and Bland, JJ.

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