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Click here for the full text of this decision FACTS:An apartment complex manager in Alvin asked Detective Jacob M. Schauer, who was moonlighting at the complex as a security guard, to issue a trespass warning to a registered sex offender in the area. When Schauer went past the laundromat where the sex offender was supposed to be, he saw Charles Terrell Morgan inside. Though Morgan denied to Schauer that he was the sex offender, Schauer nonetheless demanded that Morgan show identification. Morgan alleges that, because he was slow to produce his identification, Schauer handcuffed him, dragged him out of the laundromat, slammed his head against the hood of a parked car, and “smashed” him to the gravel parking lot. Morgan sued Schauer, alleging assault, negligence and trespass to the person. Morgan later added the city as a defendant, alleging that Schauer acted as an agent of the apartments as an individual or, alternatively, as an agent of the police department. A summary judgment for the city was entered, the claim was severed, and the judgment was affirmed on appeal. Schauer moved for summary judgment based on official immunity under the Texas Tort Claims Act, derivative of the city’s immunity. The trial court denied the motion, so Schauer appeals. HOLDING:Reversed and rendered. The court confirms that the Texas Supreme Court has held that the statutory language of former TTCA 101.106 “bars any action” is an unequivocal grant of immunity in this case. “[S]ection 101.106 applies not only to judgments against governmental entities taken before suit is brought against an employee, but also to settlements or judgments taken against a governmental entity occurring at any time during the pendency of the action against the employee.” The court adds that this principle applies even when a person has been sued in both his individual and official capacities. This is in part due to the fact that 101.106 immunity is not limited to governmental employees acting within the scope of their employment or in good faith. The only relevant inquiry is whether the plaintiff’s claims against the governmental entity the city arise under the TTCA, not whether the plaintiff’s individual claims do so. The court adds that a judgment under the TTCA bars actions against the governmental employee individually arising out of the same subject matter, as opposed to the same cause of action. Here, the trial court’s final judgment dismissing Morgan’s claims against the city bars Morgan’s claims against Schauer individually because they are claims that arise out of the same occurrence, that is, Schauer’s alleged tortious misconduct at the laundromat. OPINION:Bland, J.; Keyes, Hanks and Bland, JJ. CONCURRENCE AND DISSENT: Keyes, J. “[W]hile I join in the Court’s opinion in holding that Morgan’s suit against Schauer in his official capacity is barred by former section 101.106 of the Tort Claims Act, I dissent insofar as the opinion holds that section 101.106 in either its former or its current form deprives a plaintiff of his right to maintain a suit for liability against a governmental employee in his individual capacity for torts committed while carrying out his governmental duties simply because the plaintiff has also sued the governmental employee in his official capacity and the governmental employer has been held immune to liability. I also dissent insofar as the opinion construes former section 101.106 as relieving the governmental employee of the necessity of proving the affirmative defense of qualified immunity to claims brought against him in his individual capacity for torts committed in the exercise of his governmental duties.”

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