Degollado v. City of Port Lavaca

United States Court of Appeals
for the Fifth Circuit
____________

No. 25-40206
____________

Alexandra Degollado; Faded Smoke Shop, L.L.C.; Daniel
Herrera, Jr.,

Plaintiffs—Appellants,

versus

City of Port Lavaca, Texas; Collin Rangnow, in his official
capacity as Chief of Police for Port Lavaca, Texas; Kyle Curtis, in his
official and individual capacities; Karen Neal, in her official and
individual capacities; Adam Beard, in his official and individual capacities;
Javier Ramos, in his official and individual capacities; Maxwell
Duke, in his official and individual capacities; Maria Moreno, in her
official and individual capacities; Devon Moore, in his official and
individual capacities; Eric Salles, in his official and individual capacities;
Justin Klare, in his official and individual capacities,

Defendants—Appellees.
______________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:23-CV-14
______________________________

Before Richman, Duncan, and Oldham, Circuit Judges.
United States Court of Appeals
Fifth Circuit
FILED
August 18, 2026

Lyle W. Cayce
Clerk
Case: 25-40206 Document: 66-1 Page: 1 Date Filed: 08/18/2026

No. 25-40206
2
Per Curiam:
*

Appellants Alexandra Degollado, Daniel Herrera Jr., and Faded
Smoke Shop, LLC, appeal from the district court’s dismissal of their claims
under 42 U.S.C. § 1983 against officers of the city of Port Lavaca and the
city itself. We affirm.
I
We take the facts alleged in the complaint as true in considering this
motion to dismiss.
1
In 2019, the federal government descheduled hemp,
defined as parts of the plant Cannabis sativa L. with a concentration of delta-9
THC of 0.3% or less. Texas then removed hemp, using the same definition
as the federal government, from its definition of “controlled substances” in
Chapter 481 of the Texas Health and Safety Code. The plaintiffs allege that
Texas Health and Safety Code § 481.103 Penalty Group 2 thereafter only
covered marijuana, or Cannabis sativa L. products with more than 0.3%
delta-9 THC, and did not cover hemp or products with delta-8 THC.
A year later, Alexandra Degollado opened Faded Smoke Shop, LLC,
in Port Lavaca, Texas, selling allegedly legal products including products
with delta-8 THC and hemp with 0.3% or less delta-9 THC concentration.
Police soon began investigating her shop and the employees who worked
there. A Port Lavaca officer, Corporal Kyle Curtis, indicated that “[t]he
police department ha[d] conducted several controlled buys from [Faded
Smoke Shop] including Marijuana flower, THC concentrate AKA ‘DAB’,
and THC Vape cartridges.” “Products bought as a result of the controlled
buys were sent to DPS Crime Lab in Corpus Christi for analysis. On 2/8/21,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Case: 25-40206 Document: 66-1 Page: 2 Date Filed: 08/18/2026

No. 25-40206
3
[Curtis] received lab results from the DPS lab . . . [which] confirmed the
edibles purchased from Faded Smoke Shop, LLC, to contain THC.” “Due
to the positive test results [he] drafted an arrest warrant Degollado [sic] for
Manufacture and Deliver Controlled Substance Penalty Group 2.”
On February 9, 2021, Corporal Curtis presented an affidavit to a
magistrate judge that included the following:
I, Cpl Curtis, on 9/8/2020, entered a business located at 1504
W Austin identified as Faded Smoke Shop in an undercover
capacity. Upon entry I was greeted by the owner of said
business identified as Alexandra Degollado. . . . I purchased
0.12 ounces of a green leafy substance I suspected to be
marijuana from Degollado. The marijuana was inside a glass
jar with a faded logo. The marijuana was taken to the police
department where it field tested positive for marijuana. The
product was sent to the DPS Crime Lab for analysis.
However, the lab results do not indicate that the crime lab tested a “green
leafy substance.” Additionally, “[n]o images of the positive test for
marijuana that Curtis described in the Affidavit exist.” The plaintiffs allege
that the product in the jar was clearly marked as containing delta-8 THC.
The lab results showed the only items tested were “2 yellow
gummies,” which tested positive for THC. Curtis’s affidavit stated that
“the edibles . . . contain[ed] THC a controlled substance listed in Penalty
Group 2 TX Health and Safety Code.” However, the lab results did not
indicate whether the THC was delta-8 or delta-9 THC, nor its
concentration—in other words, the results did not indicate whether the
products were marijuana, and thus listed in Penalty Group 2, or legal
substances not listed in that group.
Based on this affidavit, the magistrate judge issued a warrant for the
search and seizure of products from Faded Smoke Shop and the arrest of
Case: 25-40206 Document: 66-1 Page: 3 Date Filed: 08/18/2026

No. 25-40206
4
Degollado and Daniel Herrera, Jr., an employee of Faded Smoke Shop. Port
Lavaca officers executed the warrant on February 9, 2021. Officers seized
several products from Faded Smoke Shop and sent them to the Bexar County
Criminal Investigation Laboratory for testing. Degollado was arrested, and
Herrera’s parole was revoked due to his arrest.
Meanwhile, the legal landscape surrounding delta-8 THC in Texas
began to shift. We take judicial notice of these facts.
2
In March of 2021, the
Commissioner of the Texas Department of State Health Services published
an updated Schedule I list of controlled substances with amendments to the
terms “tetrahydrocannabinols” and “marihuana extract.”
3
The
Department also posted a statement online reading: “All other forms of
THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%,
are considered Schedule I controlled substances.”
4

On May 27, 2021, the Bexar County Crime Lab returned lab results
on the products seized from Faded Smoke Shop. The lab analyzed the type
of THC that was present in the products and found all the tested products
contained delta-8 THC.
On October 22, 2021, the Commissioner and the Texas Department
of State Health Services were sued by plaintiffs who alleged that “delta-8
THC that was derived from hemp was de-scheduled and no longer deemed
a controlled substance and that the Department and the Commissioner had
improperly amended the schedules of controlled substances to make delta-8
_____________________
2
See Fed. R. Evid. 201.
3
Tex. Dep’t of State Health Servs. v. Sky Mktg. Corp., 711 S.W.3d 227, 236-37 (Tex.
App.—Austin 2023), aff’d in part and rev’d in part, 733 S.W.3d 689 (Tex. 2026); Brief of
Appellants at 16-17, Sky Mktg. Corp., 711 S.W.3d 227 (No. 03-21-00571).
4
Sky Mktg. Corp., 711 S.W.3d at 237.
Case: 25-40206 Document: 66-1 Page: 4 Date Filed: 08/18/2026

No. 25-40206
5
THC derived from hemp an illegal Schedule I controlled substance.”
5
On
November 8, 2021, a Texas state trial court issued a temporary injunction
against the Commissioner’s amendments to the March 2021 Schedule and
the rule the Department had posted online.
6
The Commissioner and
Department appealed, although the Texas Court of Appeals reinstated the
injunction on November 18, 2021, and maintained that delta-8 THC had
always been illegal under Texas law.
7

On April 13, 2022, Degollado and Herrera were indicted by a grand
jury for “knowingly possess[ing], with intent to deliver, a controlled
substance, namely tetrahydrocannabinol (Delta-8), in an amount of four
grams or more but less than 400 grams.” The district attorney later moved
to dismiss their cases because “Officers [were] unavailable to testify due to a
credibility issue.” Degollado applied to have her seized items returned, but
the police retained $14,000 worth of products on the grounds that the
products were illegal.
Degollado, Herrera, and Faded Smoke Shop, represented by counsel,
filed suit against Corporal Curtis, the Port Lavaca officers who conducted the
search and seizure (Adam Beard, Maxwell Duke, Justin Klare, Devon Moore,
Maria Moreno, Karen Neal, Javier Ramos, and Eric Salles), Port Lavaca chief
_____________________
5
Id; Brief of Appellants at 16, Sky Mktg. Corp., 711 S.W.3d 227 (No. 03-21-00571).
6
Sky Mktg. Corp., 711 S.W.3d at 238; Brief of Appellants at 16-17, Sky Mktg. Corp.,
711 S.W.3d 227 (No. 03-21-00571).
7
Brief of Appellants at 2, 17, Sky Mktg. Corp., 711 S.W.3d 227 (No. 03-21-00571)
(“At issue in this case is whether delta-8 THC derived from CBD, which was itself derived
from hemp, is still a Schedule I controlled substance. The answer to that question is yes.
The definition of THC has always included THCs naturally contained in the plant as well
as synthetic equivalents with similar chemical structure and pharmacological activity.
While the 2018 Farm Bill allows for THCs in hemp, it does not allow for synthetic THCs-
that is THC derived from CBD through a chemical process.”).
Case: 25-40206 Document: 66-1 Page: 5 Date Filed: 08/18/2026

No. 25-40206
6
of police Colin Rangnow, and the city of Port Lavaca, asserting constitutional
violations under 42 U.S.C. § 1983. The defendants moved to dismiss their
complaint. The district court granted the motion to dismiss and dismissed
all the plaintiffs’ claims with prejudice. The plaintiffs timely appealed.
II
“We review ‘de novo a district court’s grant or denial of [a] Rule
12(b)(6) motion to dismiss, accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiff.’”
8
“Under
this standard ‘[d]ismissal is appropriate when the plaintiff has not alleged
enough facts to state a claim to relief that is plausible on its face and has failed
to raise a right to relief above the speculative level.’”
9

III
We begin with the dismissal of the federal claims against the officer-
defendants. The plaintiffs brought claims against Corporal Curtis for
unlawful arrests and unlawful search and seizure under the Fourth
Amendment, as well as a claim of failure to intervene under the Fourteenth
Amendment against the remaining officer-defendants. In their motion to
dismiss, the officer-defendants asserted qualified immunity. “Qualified
immunity ‘ensure[s] that before they are subjected to suit, officers are on
_____________________
8
Shakeri v. ADT Sec. Servs., Inc., 816 F.3d 283, 290 (5th Cir. 2016) (quoting Hines
v. Alldredge, 783 F.3d 197, 200-01 (5th Cir. 2015), abrogated on other grounds as recognized
by, Hines v. Quillivan, 982 F.3d 266, 271-72 (5th Cir. 2020)).
9
Id. (alteration in original) (quoting True v. Robles, 571 F.3d 412, 417 (5th Cir.
2009)).
Case: 25-40206 Document: 66-1 Page: 6 Date Filed: 08/18/2026

No. 25-40206
7
notice their conduct is unlawful.’”
10
“[I]t ‘protects all but the plainly
incompetent or those who knowingly violate the law.’”
11

“Where, as here, the motion to dismiss asserts a qualified-immunity
defense, the plaintiff ‘must plead specific facts that both allow the court to
draw the reasonable inference that the defendant is liable for the harm alleged
and that defeat a qualified immunity defense with equal specificity.’”
12
“To
defeat a qualified-immunity defense, the plaintiff must show ‘(1) that the
official violated a statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct.’”
13
“The qualified-
immunity analysis contains two prongs, which we can consider in either
order.”
14
“Plaintiffs bear the burden of identifying the clearly established
law, and the right’s contours must be ‘sufficiently clear that a reasonable
official would understand that what he is doing violates that right.’”
15

A
We first consider the failure-to-intervene claim. The plaintiffs point
to no cases supporting that there was a clearly established right violated by
the officers’ failure to intervene in the warrant-authorized search and seizure
of Faded Smoke Shop, as was their burden to do. Nor do they argue that
“the alleged constitutional violation here was so ‘obvious’ as to obviate the
_____________________
10
Winfrey v. Rogers, 901 F.3d 483, 493 (5th Cir. 2018) (alteration in original)
(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
11
Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).
12
Nevarez v. Dorris, 135 F.4th 269, 274 (5th Cir. 2025) (quoting McLin v. Ard, 866
F.3d 682, 688 (5th Cir. 2017)).
13
Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
14
Id. at 275.
15
Id. (quoting Culberson v. Clay County, 98 F.4th 281, 286 (5th Cir. 2024)).
Case: 25-40206 Document: 66-1 Page: 7 Date Filed: 08/18/2026

No. 25-40206
8
need for clearly established law.”
16
“That ends the second-prong
analysis.”
17

We recognize that “an officer could be held liable for a search
authorized by a warrant when the affidavit presented to the magistrate was
‘so lacking in indicia of probable cause as to render official belief in its
existence unreasonable,’” but in that “situation, we have rightly recognized
that liability should attach only to the ‘affiant and person who actually
prepared, or was fully responsible for the preparation of, the warrant
application.’”
18
Even had the plaintiffs carried their burden to identify this
as relevant clearly established law, they only allege that Corporal Curtis, not
the other officers named in their failure-to-intervene claim, prepared the
affidavit. At any rate, because plaintiffs do not point to any law clearly
establishing their Fourteenth Amendment claim, the officer-defendants are
entitled to qualified immunity on this claim.
19

B
We next turn to the claims against Corporal Curtis. The plaintiffs
assert Franks v. Delaware
20
is the clearly established law that Corporal Curtis
violated. “Since Franks v. Delaware, it has been clearly established that a
defendant’s Fourth Amendment rights are violated if (1) the affiant, in
support of the warrant, includes ‘a false statement knowingly and
_____________________
16
Id. at 275 n.5 (citing Taylor v. Riojas, 592 U.S. 7, 8-10 & n.2 (2020)).
17
Id. at 275.
18
Melton v. Phillips, 875 F.3d 256, 264 (5th Cir. 2017) (en banc) (first quoting Malley
v. Briggs, 475 U.S. 335, 345 (1986); and then quoting Michalik v. Hermann, 422 F.3d 252,
261 (5th Cir. 2005)).
19
See id. at 265- 66.
20
438 U.S. 154 (1978).
Case: 25-40206 Document: 66-1 Page: 8 Date Filed: 08/18/2026

No. 25-40206
9
intentionally, or with reckless disregard for the truth’ and (2) ‘the allegedly
false statement is necessary to the finding of probable cause.’”
21
Here, the
plaintiffs allege Corporal Curtis “was mistaken, deliberately misleading by
omission, or lied within the affidavit.”
The plaintiffs must also show that the clearly established
constitutional right at issue was violated. “Under the first prong of Franks,
[the plaintiffs] must present evidence that [Curtis], through material
omissions or otherwise, made ‘a false statement knowingly and intentionally,
or with reckless disregard for the truth.’”
22
The plaintiffs first argue in their
briefing before this court that “the affidavit implied that a DPS lab test was
performed on the green leafy substance even though it was subjected to no
such testing.” But the affidavit stated only that the “green leafy substance”
“was sent to the DPS Crime Lab for analysis.” Additionally, the plaintiffs
only alleged in their complaint that “[t]he lab results from DPS . . . [did] not
contain the ‘green leafy substance.’” That the lab records did not reflect a
test was performed on this substance does not make the statement that the
substance was sent to the lab false. Even if we considered it to be false, the
statement that the products were sent for testing is immaterial to whether the
_____________________
21
Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018) (internal citation omitted)
(quoting Franks, 438 U.S. at 155-56); see also Hart v. O’Brien, 127 F.3d 424, 442 (5th Cir.
1997) (accepting a Franks claim as sufficient allegation of a constitutional violation in the
qualified immunity context), abrogated on other grounds by, Kalina v. Fletcher, 522 U.S. 118
(1997); Terwilliger v. Reyna, 4 F.4th 270, 285 (5th Cir. 2021) (noting that “it is clearly
established that a warrant is not evidence of probable cause” if the elements of a Franks
violation are shown); cf. Melton, 875 F.3d at 266 (holding Franks did not clearly establish a
Fourth Amendment violation when “no false statement . . . made its way into the warrant”
because “Franks expressly requires a falsehood to be included in the warrant application”).
22
Winfrey, 901 F.3d at 494 (quoting Franks, 438 U.S. at 155).
Case: 25-40206 Document: 66-1 Page: 9 Date Filed: 08/18/2026

No. 25-40206
10
affidavit provided probable cause because it avers nothing about what the test
results ultimately showed.
23

The plaintiffs appear to also challenge the statement in the affidavit
that the “green leafy substance” “field tested positive for marijuana,” as
they argue on appeal that they “plausibly alleged that officers knew field tests
cannot distinguish legal hemp from illegal marijuana.” Such an allegation
does not appear in the complaint. Rather, the complaint alleged only that
“[n]o images of the positive test for marijuana . . . exist.” This is insufficient
to allege that the statement regarding the field test was false.
Finally, the plaintiffs challenge the statement that “[t]he DPS Crime
[Lab] confirmed the edibles to contain THC a controlled substance listed in
Penalty Group 2 TX Health and Safety code” because the lab results showed
only that the edibles contained THC, but not “the concentration or whether
the [THC] was legal hemp products or the Delta variants that are included
in Penalty Group 2.” We agree that the plaintiffs alleged this statement is
inaccurate—the DPS lab results did not show that the products contained
“a controlled substance listed in Penalty Group 2” because the lab did not
test the concentration or type of THC. The lab results, which indicated only
the presence of THC, were equally consistent with legal hemp, not listed in
Penalty Group 2, and illegal marijuana.
“Still, ‘negligence alone will not defeat qualified immunity.’”
24
“[A]
proven misstatement can vitiate an affidavit only if it is established that the
misstatement was the product ‘of deliberate falsehood or of reckless
_____________________
23
See id. (“[W]e must proceed further to the second prong of Franks in order to
resolve whether ‘the allegedly false statement is necessary to the finding of probable
cause.’” (quoting Franks, 438 U.S. at 156)).
24
Id. (quoting Brewer v. Hayne, 860 F.3d 819, 825 (5th Cir. 2017)).
Case: 25-40206 Document: 66-1 Page: 10 Date Filed: 08/18/2026

No. 25-40206
11
disregard for the truth.’”
25
“Recklessness requires proof that the defendant
‘in fact entertained serious doubts as to the truth of the statement.’”
26
The
plaintiffs allege that because the federal law descheduling hemp “had been in
effect for over a year and the Texas Administrative Code had been in effect
for at least six months,” “Curtis had a duty as a peace officer and a higher
ranking officer to ensure that the basis for the Search and Arrest Warrant was
indeed a crime.” But Corporal Curtis did attempt to ensure he had proof of
a crime—he sent products suspected to be illicit substances that were
obtained through controlled buys to the DPS crime lab for testing.
Corporal Curtis submitted “[s]eized [d]rugs” to the DPS crime lab
for analysis. He indicated that there was a “[s]uspect,” namely Degollado,
associated with the submission. He requested the crime lab “[e]xamine [the
products] for the presence of controlled substances.” Clearly, the purpose
of this submission was for the lab to confirm officers had probable cause to
make an arrest. In response to this submission, the DPS crime lab indicated
the tested products contained THC. THC is, in at least some
circumstances, a controlled substance. It was not unreasonable for Corporal
Curtis to rely on the lab results and believe that the crime lab meant it had
detected the presence of something illegal, even if the results were
ambiguous. It certainly may have been negligent to assume the crime lab
results meant the substances were illegal in light of Texas’s legal landscape
surrounding hemp, but we cannot say that it was reckless to do so, especially
considering the ambiguity surrounding the legality of other types of THC
aside from delta-9. We therefore conclude that the plaintiffs have not alleged
_____________________
25
Id. (alteration in original) (quoting United States v. Martin, 615 F.2d 318, 329 (5th
Cir. 1980)).
26
Id. (quoting Hart, 127 F.3d at 449).
Case: 25-40206 Document: 66-1 Page: 11 Date Filed: 08/18/2026

No. 25-40206
12
sufficient facts that would support a finding that Curtis “acted intentionally,
knowingly, or recklessly.”
27

Because Corporal Curtis lacked the requisite scienter in making these
inaccurate statements in the affidavit, the plaintiffs fail to establish a Franks
violation. Without showing that a clearly established constitutional right was
violated, the plaintiffs cannot sustain their burden to defeat the qualified
immunity defense. Corporal Curtis is accordingly entitled to qualified
immunity on this claim, and dismissal was proper.
IV
We now turn to the plaintiffs’ municipal liability claim against the city
of Port Lavaca. To state a claim of municipal liability under 42 U.S.C.
§ 1983, the plaintiffs “must plead facts that plausibly establish that ‘(1) an
official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.’”
28
“[T]here are
three ways to establish an official policy under Monell: (1) written policy
statements, ordinances, or regulations; (2) a widespread practice that is so
common and well-settled as to constitute a custom that fairly represents
municipal policy; or (3) even a single decision may constitute municipal
policy in rare circumstances, when the official or entity possessing final
policymaking authority for an action performed the specific act that forms
the basis of the § 1983 claim.”
29

This case involves the second category, as the plaintiffs allege a failure
to train. “[W]here a failure to train reflects a ‘deliberate’ or ‘conscious’
_____________________
27
Id.
28
St. Maron Props., L.L.C. v. City of Houston, 78 F.4th 754, 760 (5th Cir. 2023)
(quoting Peña v. City of Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018)).
29
Id.
Case: 25-40206 Document: 66-1 Page: 12 Date Filed: 08/18/2026

No. 25-40206
13
choice by a municipality—a ‘policy’ as defined by our prior cases—[] a city
[can] be liable for such a failure under § 1983.”
30
“[T]he inadequacy of
police training may serve as the basis for § 1983 liability only where the failure
to train amounts to deliberate indifference to the rights of persons with whom
the police come into contact.”
31
“[I]t may happen that in light of the duties
assigned to specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can reasonably be
said to have been deliberately indifferent to the need.”
32

“Because the ‘standard for [municipal] fault’ is a ‘stringent’ one, ‘[a]
pattern of similar constitutional violations by untrained employees is
ordinarily’ required to show deliberate indifference.”
33
The plaintiffs do not
plead such a pattern. However, “it is true that ‘a plaintiff [. . .] may establish
deliberate indifference’ through ‘a single incident.’”
34
This is no easy task.
In this circuit, “[w]e have consistently rejected application of the single
incident exception and have noted that ‘proof of a single . . . incident
ordinarily is insufficient to hold a municipality liable for inadequate
training.’”
35

The plaintiffs pled “Curtis still failed to be properly supervised and
trained as to the legality of Delta 8” and Port Lavaca’s “inadequate training
_____________________
30
City of Canton v. Harris, 489 U.S. 378, 389 (1989).
31
Id. at 388.
32
Id. at 390.
33
Peña, 879 F.3d at 623 (alterations in original) (quoting Connick v. Thompson, 563
U.S. 51, 62 (2011)).
34
Id. at 624 (quoting Burge v. St. Tammany Par., 336 F.3d 363, 373 (5th Cir. 2003)).
35
Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000) (quoting Snyder v.
Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998)).
Case: 25-40206 Document: 66-1 Page: 13 Date Filed: 08/18/2026

No. 25-40206
14
policy directly caused injury to Plaintiff.” Under our precedent, this is not
enough to sustain the heavy burden required to meet the single incident
exception for failure to train theories of municipal liability. We accordingly
conclude the district court did not err in dismissing this claim.
V
We next consider the plaintiffs’ malicious prosecution claim. The
district court determined this claim was barred against both the officer-
defendants and the city of Port Lavaca under the Texas Tort Claims Act
(TTCA). The plaintiffs now argue that the district court erred by
interpreting their federal malicious prosecution claim as a state-law claim.
In their complaint, the plaintiffs cite a case from the Eastern District
of Texas for the elements of a malicious prosecution claim. However, that
case held that “if Plaintiff intended to allege a claim for malicious prosecution
under state law, such a claim fails,” and listed the elements that “[p]ursuant
to Texas law, a plaintiff asserting a malicious prosecution claim must
establish.”
36
As the plaintiffs themselves acknowledged in their complaint,
that case itself cited a Supreme Court of Texas decision.
Further, in the jurisdiction and venue section of their complaint, the
plaintiffs alleged that the district court had “supplemental jurisdiction to
hear the common law claims under 28 U.S.C. § 1367.” Given that all of the
plaintiffs’ other claims arise squarely under federal law—namely, 42 U.S.C.
§ 1983—it seems likely that this referred to the malicious prosecution claim.
Taking this together with the fact that their complaint lists the elements of a
state-law malicious prosecution claim from a Supreme Court of Texas
_____________________
36
Horner v. City of Highland Village, No. 17-cv-00774, 2018 U.S. Dist. LEXIS
85382, at *13-14 (E.D. Tex. May 22, 2018) (unpublished) (emphasis added) (citing Richey
v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997)).
Case: 25-40206 Document: 66-1 Page: 14 Date Filed: 08/18/2026

No. 25-40206
15
decision, we agree with the district court that plaintiffs pled a state-law claim.
To the extent the plaintiffs now attempt to bring a federal malicious
prosecution claim on appeal, they have “forfeit[ed] [this] argument by failing
to raise it in the first instance in the district court.”
37

Having determined that the plaintiffs pled a state-law malicious
prosecution claim, we now consider whether that claim is barred by the
TTCA. “[T]he TTCA ‘waives governmental immunity for certain
negligent conduct, but [it] does not waive immunity for claims arising out of
intentional torts.’”
38
“[I]ntentional conduct, no matter how it is pled, falls
under the TTCA’s sovereign immunity waiver exception.”
39
“Given that
malicious prosecution is an intentional tort,”
40
this claim is barred by
sovereign immunity. Dismissal of this claim was proper.
VI
Finally, the plaintiffs assert that the district court erred in dismissing
their post-dismissal retention claims. The plaintiffs raise this claim for the
first time on appeal, as they did not plead a post-dismissal retention claim in
their complaint, nor did the district court consider such a claim. “It is a
bedrock principle of appellate review that claims raised for the first time on
_____________________
37
Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).
38
Aguirre v. City of San Antonio, 995 F.3d 395, 422 (5th Cir. 2021) (quoting City of
Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014)).
39
Id. (citing Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001)).
40
Humphreys v. City of Ganado, 467 F. App’x 252, 256 (5th Cir. 2012)
(unpublished); see also City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—
Houston [1st Dist.] 1995, no writ); Closs v. Goose Creek Consol. Indep. Sch. Dist., 874 S.W.2d
859, 869 (Tex. App.—Texarkana 1994, no writ).
Case: 25-40206 Document: 66-1 Page: 15 Date Filed: 08/18/2026

No. 25-40206
16
appeal will not be considered.”
41
Whatever merit such a claim may have had,
we find that the plaintiffs have forfeited it.
* * *
For the foregoing reasons, we AFFIRM the district court’s dismissal
of the plaintiffs’ claims.
_____________________
41
Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-
17 (5th Cir. 2000).
Case: 25-40206 Document: 66-1 Page: 16 Date Filed: 08/18/2026