Sydney Murphy, Guylene Robertson, Ronnie Vincent, Milt Purvis, and Charles Thomas Overstreet v. Tyler Epstein, Trustee of the Elmwood Revocable Trust

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00021-CV
________________

SYDNEY MURPHY, GUYLENE ROBERTSON, RONNIE VINCENT, MILT
PURVIS, AND CHARLES THOMAS OVERSTREET, Appellants

V.

TYLER EPSTEIN, TRUSTEE OF THE ELMWOOD REVOCABLE TRUST,
Appellee

________________________________________________________________________

On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. CIV22-0716
________________________________________________________________________

MEMORANDUM OPINION

In this accelerated appeal, Appellants Sydney Murphy, Guylene Robertson,

Ronnie Vincent, Milt Purvis, and Charles Thomas Overstreet (collectively

“Appellants”) appeal an interlocutory order denying their Plea to the Jurisdiction

wherein they sought to dismiss claims asserted against them in their individual

1
capacity. We reverse the Order of the trial court and render judgment in favor of

Appellants.

Background

In November 2022, Tyler Epstein (“Epstein” or “Appellee”), as Trustee of the

Elmwood Revocable Trust, filed an Original Petition and Application for Temporary

Restraining Order, Temporary Injunction, and Permanent Injunction against several

individuals, business entities, state entities, and state officials in their official

capacity, including Sydney Murphy, Polk County Judge; Guylene Robertson,

County Commissioner, Precinct One, Polk County, Texas; Ronnie Vincent, County

Commissioner, Precinct Two, Polk County, Texas; Milt Purvis, County

Commissioner, Precinct Three, Polk County, Texas; and Charles Thomas

Overstreet, County Commissioner, Precinct Four, Polk County, Texas for access to

property that he acquired known as the Elmwood Tract (“Elmwood Tract”).

According to Epstein, he purchased 270.741 acres known as the Elmwood Tract in

December 2020. Epstein alleges that the Elmwood Tract can only be accessed via a

road he identifies in his petition as Old J.A. Walding Road (“Old Walding Road”),

a public, but unpaved road. According to Epstein, Old Walding Road is only

connected to three roads, Horace Bond Road, C.M. Hardy Road, and Walding Road.

Epstein stated that after he purchased Elmwood Tract, gates and a fence were

illegally erected across Horace Bond Road, C.M. Hardy Road, and Walding Road,

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preventing his ability to access Old Walding Road and the Elmwood Tract.

According to Epstein, prior to his purchase of the property, the Elmwood Tract and

surrounding tracts were part of a deer lease. Epstein states that he intended to develop

the Elmwood Tract for a different use, and that the surrounding tract owners wanted

to continue the deer lease and schemed to prevent him from accessing Old Walding

Road and developing the Elmwood Tract with the obstructions of gates and a fence.

In an effort to permanently remove the obstructions and have Old Walding Road,

Horace Bond Road, C.M. Hardy Road, and Walding Road established as public

county roads, Epstein sued Appellants and several defendants, including the Texas

Department of Transportation; Polk County; the Polk County Commissioners Court;

Livingston Independent School District; the Livingston Independent School District

Board of Trustees; Livingston Independent School District Board of Trustees

President Bea Ellis; Livingston Independent School District Trustees John Allen

Slocomb, Kevin Wooten, Scott Paske, Andrew Boyce, Kevin Grimm, and Mindi

Pipes; Thomas Timber Investments, LLC, Johnnie L. Wade; James W. Hobson;

Denisla K. Hobson; Russel Thomas; Cynthia Thomas; The Walding Hunting Club;

Claud Thomas; and Foster Timber, Ltd. Epstein has since non-suited all defendants

except Appellants.

As against Appellants, Epstein brought causes of action of negligence per se,

and inverse condemnation, and alleged that immunity was waived by acting ultra

3
vires and under the abuse of office exception. Epstein further alleged that Appellants

could be held personally liable under the abuse of office exception to sovereign

immunity defense.

In response to Epstein’s Original Petition, Appellants filed a Plea to the

Jurisdiction, Response to Request for Temporary Restraining Order, and in the

alternative, Original Answer. In their plea, Appellants stated that Epstein failed to

make the proper assertions when making an inverse condemnation claim against a

governmental entity. Specifically, Epstein failed to allege that Polk County took

direct governmental action or was the proximate cause of the harm. According to

Appellants, “[i]t is undisputed that at the time of the purchase of the property there

was no identifiable current county-maintained road running ‘through the north and

west boundaries of the Elmwood Tract.’” Appellants further argued that to

sufficiently allege a takings claim, a party must allege that the governmental entity

intended the resulting damage or was substantially certain the damage would occur.

Appellants argued that Epstein has not alleged, and cannot establish, that Polk

County intended to cause damage to the Elmwood Tract or has taken any action

related to his acquisition of it.

In April 2023, Epstein filed his Third Amended Petition and indicated that he

partially non-suited the Polk County Judge, Commissioners, and other defendants

for the inverse condemnation cause of action. Negligence per se was the remaining

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cause of action against Appellants, and Epstein continued to allege ultra vires and

abuse of office as theories for waiver of immunity.

In June 2023, the trial court granted Appellants’ Plea to the Jurisdiction,

except to the extent of the continued joinder of Polk County solely as a necessary

party pursuant to Section 37.006 of the Texas Civil Practice and Remedies Code.

Epstein later filed a Fifth Amended Petition for claims of negligence per se; private

and public nuisance; claims under 42 U.S.C. § 1983 for violations of the Equal

Protections Clause, Substantive Due Process, and Procedural Due Process; tortious

interference with property rights and business relationships; and intentional invasion

or interference with property rights against the Polk County Judge and the

Commissioners. Epstein continued to allege theories of ultra vires, abuse of office,

and inapplicability of the qualified immunity doctrine as exceptions to immunity.

Epstein’s Fifth Amended Petition dismissed his pursuit of a declaratory judgment.

Appellants filed a second Plea to the Jurisdiction and Answer in response to

Epstein’s Fifth Amended Petition and argued that Appellants previous Plea to the

Jurisdiction was granted, except to the extent of continued joinder of Polk County

solely as a necessary party pursuant to Section 37.006 of the Texas Civil Practice

and Remedies Code. Appellants stated that because Epstein was no longer seeking

declaratory relief, and only seeking damages in excess of $1,000,000, Appellants

should no longer be parties to the suit and the court should uphold its previous

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judgment dismissing Appellants. Appellants further argued that Texas case law has

established that a road can be ordered closed by a commissioners’ court or

abandoned by the court without notice or hearing. Appellants acknowledge that

Epstein provided evidence that a petition for a public road was granted by Polk

County in 1908; however, Epstein has not demonstrated that any further action was

taken to create the road. According to Appellants, there is no evidence of any further

action to create the road, and even if it properly existed at some point, it has long

since been abandoned due to its infrequent use.

Appellants also argue that nuisance is not a cause of action, and Epstein’s

claims for public or private nuisance cannot stand alone absent a cause of action

under the Texas Tort Claims Act, or wrongful conduct. Regarding Epstein’s

negligence per se claim and section 1983 claims, Appellants argue that Epstein

cannot claim a violation of the Texas Transportation Code regarding a road that is

not a public road, nor has he demonstrated a deprivation of rights. Appellants argue

that no contract exists for a tortious interference claim and that he has not properly

pleaded any elements of a civil conspiracy. Finally, Appellants argue that Epstein’s

ultra vires claim fails because he has not shown that Appellants took any

“unauthorized” actions.

Epstein then filed a Notice of Nonsuit Regarding Polk County Defendants in

their Official Capacities and indicated that Appellants remain in the lawsuit in their

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personal capacities for the claims in the Fifth Amended Petition. In addition to the

Nonsuit, Epstein filed a Response to Appellants’ Second Plea to the Jurisdiction and

argued that Appellants’ Second Plea is moot since it was based on sovereign

immunity, and he nonsuited Appellants in their official capacity. Epstein maintained

that even if the Second Plea was not moot, Appellants have failed to demonstrate a

lack of subject matter jurisdiction.

The trial court conducted a hearing on Appellants’ Second Plea, during which

Appellants filed a brief challenging Epstein’s standing since he recently sold the

Elmwood Tract. In response, Epstein stated that he is still permitted to bring causes

of action that arose during the time he had an interest in the property, and he

motioned for sanctions against Appellants and alleged the standing challenge was

brought for improper purposes and not warranted by law. Appellants filed a Sur-

Reply and Response to Epstein’s Motion for Sanctions and stated that the standing

challenge was filed in good faith and that Epstein had failed to establish standing

and jurisdiction.

In January 2024, the trial court denied Appellants’ Second Plea to the

Jurisdiction and standing challenge. This interlocutory appeal followed.

Standard of Review

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for

lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex.

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2004). The purpose of a plea to the jurisdiction is to defeat a cause of action without

regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is essential to the authority

of the court to decide a case and is never presumed and cannot be waived. Tex. Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). Whether a

court has subject matter jurisdiction is a question of law that we review de novo.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

When a plea to the jurisdiction challenges the existence of jurisdictional facts,

the trial court must consider evidence, “even if the evidence implicates both subject-

matter jurisdiction and the merits of a claim.” Alamo Heights Indep. Sch. Dist. v.

Clark, 544 S.W.3d 755, 770-71 (Tex. 2018). The standard when considering such a

plea generally mirrors the standard for considering a traditional motion for summary

judgment under Texas Rule of Civil Procedure 166a(c). Miranda, 133 S.W.3d at

228. The trial court reviews the evidence and determines whether a fact issue exists.

Id. at 227. “If the evidence creates a fact question regarding the jurisdictional issue,

then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be

resolved by the fact finder.” Id. at 227-28. “However, if the relevant evidence is

undisputed or fails to raise a fact question on the jurisdictional issue, the trial court

rules on the plea to the jurisdiction as a matter of law.” Id.

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In this appeal, the Appellants’ Plea to the Jurisdiction challenges both the

sufficiency of Appellee’s pleadings and the existence of facts affirmatively

establishing jurisdiction. The trial court denied the Appellants’ Plea, and the

Appellants filed an interlocutory appeal pursuant to Texas Civil Practice and

Remedies Code section 51.014(a)(8). “Subject matter jurisdiction is a question of

law. As a result, an appellate court conducts a de novo review of a trial court’s ruling

on a plea to the jurisdiction.” City of Cleveland v. LaFrance, No. 09-20-00189-CV,

2022 WL 2068858, at *6 (Tex. App.—Beaumont, June 9, 2022, no pet.) (mem.

op.); Miranda, 133 S.W.3d at 226. When a plea to the jurisdiction challenges the

existence of jurisdictional facts, we must consider relevant evidence submitted by

the parties to resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227. In

reviewing such a plea, we take as true all evidence favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts in the nonmovant’s

favor. Alamo Heights Indep. Sch. Dist., 544 S.W.3d 755 at 771; Miranda, 133

S.W.3d at 228. Because the Appellants’ jurisdictional plea challenges the sufficiency

of the pleadings, we must review Appellee’s pleadings to determine whether they

affirmatively plead facts which, if true, invoke the court’s jurisdiction. City of

Cleveland, 2022 WL 2068858, at *7. And, because the Appellants’ plea also

challenges the existence of jurisdictional facts, we must also review the evidence,

and our review mirrors that of our review of a trial court’s determination of a motion

9
for summary judgment: “all the evidence is reviewed in the light most favorable to

the plaintiff to determine whether a genuine issue of material fact exists.” Town of

Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). “[W]e take as true all

evidence favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts in the nonmovant’s favor.” City of Cleveland, 2022 WL

2068858, at *7 (citing Alamo Heights, 544 S.W.3d at 771); Miranda, 133 S.W.3d at

228; see also City of San Antonio v. Maspero, 640 S.W.3d 523, 528-29 (Tex. 2022).

“However, we cannot disregard evidence necessary to show context or evidence and

inferences unfavorable to the nonmovant if reasonable jurors could not do so.” City

of Cleveland, 2022 WL 2068858, at *7 (citing Alamo Heights, 544 S.W.3d at 771).

Analysis

In issue one, Appellants complain the trial court lacked subject matter

jurisdiction and erroneously denied their plea to the jurisdiction. Appellants first

argue that the trial court did not have jurisdiction because Epstein lacked standing

once he sold the Elmwood Tract and is unable to demonstrate that his injuries were

particularized and distinct from those of the general public. According to Appellants,

Epstein is attempting to claim an injury after the conveyance of the Elmwood Tract

and Epstein has not demonstrated that Appellants, in their personal capacities,

injured him. In addition to arguing that Appellants are not liable in their personal

capacities, Appellants argue, in the alternative, that the trial court lacked subject

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matter jurisdiction over the causes of action asserted in Epstein’s Fifth Amended

Petition because Epstein failed to demonstrate that the County intended to create the

road and that a county road existed.

According to Epstein, this Court lacks jurisdiction over this appeal because it

is not permitted as an interlocutory appeal since the underlying motion is not a plea

to the jurisdiction by a governmental unit as required by section 51.014(a)(8) of the

Texas Civil Practice and Remedies Code, and because the notice of appeal is

deficient in that it only names Appellants in their official capacity. Epstein argues

that, if this Court’s exercise of jurisdiction is proper, he has proper standing to bring

his claims for an injury he suffered while he owned the property. Epstein further

argues that Appellants can be held liable in their corporate/government capacity and

that he has sufficiently pleaded specific actions that caused a real injury by

Appellants in their individual capacity.

Plea to the Jurisdiction

Unless a statute authorizes an interlocutory appeal, the jurisdiction of this

Court is limited to the review of final judgments. See Tex. Civ. Prac. & Rem. Code

Ann. §§ 51.012, .014; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

In the Plea to the Jurisdiction at issue, Appellants argued that the prior Plea to the

Jurisdiction was granted except to the extent of continued joinder of Polk County

solely as a necessary party pursuant to Section 37.006 of the Texas Civil Practice

11
and Remedies Code. At that point, Epstein was no longer seeking declaratory relief,

and Appellants argued that the trial court should uphold its previous judgment

dismissing Appellants since they should no longer be parties to the suit. In response,

Epstein nonsuited Appellants in their official capacities and stated that the

Appellants remain in the lawsuit in their individual capacities. As a result, Epstein

argues the interlocutory order appealed from does not grant or deny a plea to the

jurisdiction filed by a government unit or dismiss any claims against Polk County or

its commissioners in their official capacities. Epstein argues Texas Civil Practice

and Remedies Code section 51.014(a)(8) does not provide a basis for this Court to

exercise appellate jurisdiction over this interlocutory appeal. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a)(8); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.

1998) (interlocutory order is appealable “only if a statute explicitly provides

appellate jurisdiction[]”).

Standing

“A plea to the jurisdiction ‘may challenge the pleadings, the existence of

jurisdictional facts, or both.’ If a plea ‘challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to

hear the cause.’” Tex. Dep’t of Crim. Just. v. Rangel, 595 S.W.3d 198, 205 (Tex.

2020.) (citing Alamo Heights Indep. Sch. Dist., 544 S.W.3d 755 at 770; Miranda,

133 S.W.3d at 226.). Because Appellants’ jurisdictional plea challenges the

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sufficiency of the pleadings, we must review Epstein’s pleadings to determine

whether they affirmatively plead facts which, if true, invoke the court’s jurisdiction.

Standing is a component of subject-matter jurisdiction, and “focuses on whether a

party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’

in its outcome[.]” Teal Trading & Dev., LP v. Champee Springs Ranches Prop.

Owners Ass’n, 593 S.W.3d 324, 331-32 (Tex. 2020); Austin Nursing Ctr., Inc. v.

Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Under Texas law, standing requires a

“concrete injury to the plaintiff and a real controversy between the parties that will

be resolved by the court.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex.

2012). The inquiry into standing begins by determining whether the plaintiff has

been personally injured, and the plaintiff must plead facts sufficient to show that he,

rather than a third party or the public at large, suffered the injury. Id. at 155.

Generally, unless standing is conferred by statute, a “plaintiff must

demonstrate that he or she possesses an interest in a conflict distinct from that of the

general public, such that the defendant’s actions have caused the plaintiff some

particular injury.” Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex. 2001) (citing Hunt

v. Bass, 664 S.W.2d 323, 324 (Tex. 1984)). “The general test for standing in Texas

requires that there ‘(a) shall be a real controversy between the parties, which (b) will

be actually determined by the judicial declaration sought.’” Tex. Ass’n of Bus., 852

S.W.2d at 446 (quoting Bd. of Water Eng’rs v. City of San Antonio, 283 S.W.2d 722,

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724 (Tex. 1995)). Additionally, it is important to note that standing deals with

whether a litigant is the proper person to bring a lawsuit, not whether that party can

ultimately prevail on the claims asserted. See Hunt, 664 S.W.2d at 324 (holding “the

question of standing is distinct from the question of proof and once the plaintiffs

alleged an interest peculiar to themselves and distinguishable from the public

generally, they were entitled to a factual hearing[]”).

Appellants argue that the trial court lacked subject matter jurisdiction to rule

on the plea to the jurisdiction because Epstein does not have standing to bring the

lawsuit. According to Appellants, Epstein sold the Elmwood Tract after he filed his

Original Petition, and he cannot claim an injury after conveyance of the property. In

response, Epstein does not allege a particular statute conveys standing. Rather,

Epstein asserts that the trial court has subject-matter jurisdiction over the underlying

suit because he owned the Elmwood Tract when the alleged injury occurred and

when he filed the underlying lawsuit. Epstein further argues that Appellants injured

him when they conspired with private landowners and others to violate his property

rights, prevented his access to the Elmwood Tract, and refused to remove

obstructions from public roads that would allow him access to the Elmwood Tract.

Epstein purchased the Elmwood Tract in December 2020, and sold it in

August 2023. Epstein filed his Original Petition in November 2022, before he sold

the Elmwood Tract. In his live pleading, the Fifth Amended Petition, Epstein alleges

14
that Appellants conspired with surrounding landowners to obstruct his access to the

Elmwood Tract by preventing his use of a public road. Epstein alleges that when he

owned the Elmwood Tract, Appellants conspired against him in several ways,

including: failing to include his request that the status of the roads be on the

Commissioners Court meeting agenda in January 2021, meeting with surrounding

landowners to argue against declaring the road public in January 2021, and failing

to declare Old Walding Road necessary to access the Elmwood Tract as an open

county road when presented with the necessary documents. Based on the allegations

in Epstein’s Fifth Amended Petition and his ownership of the Elmwood Tract when

the alleged injury occurred, Epstein has standing for claims regarding the Elmwood

Tract that occurred during his ownership. See Abbott v. City of Princeton, 721

S.W.2d 872, 874-75 (Tex. App.—Dallas 1986, writ ref’d n.r.e) (explaining that

generally, “a plaintiff who voluntarily coveys the subject property during pendency

of a suit may maintain an action to recover for damages sustained during the period

that the plaintiff owned the property[]”) (citing Richey v. Stop N Go Markets of Tex.,

Inc., 643 S.W.2d 505, 507 (Tex. App.—Houston [14th Dist.] 1982), aff’d, 654

S.W.2d 430 (Tex. 1983)). Because Epstein’s claims against Appellants accrued

during the period he owned the property, he has standing to bring the causes of action

against Appellants. See id. We overrule Appellants’ argument in issue one that the

15
trial court lacked subject matter jurisdiction because Epstein failed to demonstrate

he has standing.

Subject Matter Jurisdiction

Next, Appellants argue that Epstein has not made any allegations against

Appellants in their personal capacities. According to Appellants, Epstein’s pleadings

allege actions that can only be taken in Appellants’ official capacities as a Polk

County Judge and Polk County Commissioners since Appellants have no authority

in their personal capacities to govern public roads.

In response, Epstein argues that his pleadings sufficiently allege specific

actions and a real injury caused by Appellants in their personal capacities. Epstein

argues that examples of Appellants’ actions outside the scope of their official

capacities as a county judge and commissioners that invoke their personal liability

include: meeting and conspiring with the surrounding landowners to violate his

property rights, notifying surrounding landowners of Appellee’s plan to develop the

Elmwood Tract, firing the surveyor in order to claim they could not locate Old

Walding Road, refusing his request to be heard at the Commissioners’ Court

meetings, approving other roadways while depriving him of his property, and

refusing to follow the law and remove the obstructions from the roads to allow him

access to his property. Epstein further argues that Appellant Murphy met with Claud

Thomas, a prior defendant and Epstein’s neighboring property owner, on three

16
occasions to make sure the Commissioners Court was on the same page regarding

the status of Old Walding Road. Each of these allegations revolves around the failure

of the County Judge and Commissioners to take action to establish and open a road

for Epstein’s benefit.

The plaintiff has the burden to show that jurisdiction exists by alleging facts

that affirmatively demonstrate that the trial court has subject matter jurisdiction. Tex.

Ass’n of Bus., 852 S.W.2d at 446; City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.

App.—El Paso 2000, pet. dism’d w.o.j.). We examine the pleading, taking as true

the facts pled, and we determine whether those allegations of fact support

jurisdiction in the trial court. Tex. Ass’n of Bus., 852 S.W.2d at 446; City of Midland,

33 S.W.3d at 6-7. In doing so, we construe the pleadings in favor of the pleader. Tex.

Ass’n of Bus., 852 S.W.2d at 446. If necessary, we may review the entire record to

determine if there is jurisdiction. Id. If the petition does not allege jurisdictional

facts, the plaintiff’s suit is subject to dismissal only when it is impossible to amend

the pleadings to confer jurisdiction. See id.

We note that Epstein’s earlier petitions were brought against the Appellants

in their official capacities seeking injunctive relief and damages. Epstein’s fifth and

most recent petition brings allegations against Appellants in their official and

individual capacities and, instead, seeks damages against the Appellants. After filing

his Fifth Amended Petition, Epstein nonsuited his claims against the Appellants in

17
their official capacities in an attempt to defeat the jurisdiction of this court to

consider the appeal. That said, a government employee is entitled to dismissal of a

suit brought against the employee or office holder in his individual capacity when

the suit could have been brought under this chapter against the governmental unit.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). The phrase “under this chapter”

includes suits for which immunity is not waived. Franka v. Velasquez, 332 S.W.3d

367, 379 (Tex. 2011). But an employee is always individually liable for torts in his

individual capacity even if committed during the course of employment. Id. at 383.

Intentional torts may be within the scope of employment if “the course of conduct

in which the tort occurred is within the scope of employment.” Restatement (Third)

of Agency § 7.07 cmt. c (Am. L. Inst. 2006). But the current version of section

101.106 protects employees in their individual capacities. See Franka, 332 S.W.3d

at 381 (“This construction of section 101.106(f) does, however, foreclose suit against

a government employee in his individual capacity if he was acting within the scope

of employment.”). If an employee commits a tort while performing work assigned

by the employer or while acting within the scope of his employer’s control, the

employee’s conduct is within the scope of employment unless the employee was

engaged in an independent course of conduct not intended to further any purpose of

the employer. See Mason v. Wood, No. 09-12-00246-CV, 2013 WL 1088735, *3

18
(Tex. App.—Beaumont March 14, 2013, no pet.) (mem. op.) (citing Restatement

(Third) of Agency § 7.07 cmt. b (Am. L. Inst. 2006)).

Here, the facts alleged by Epstein are that Appellants, in their personal

capacities, caused conditions that substantially interfered with his use and enjoyment

of his land and refused to follow the law and remove the artificial and natural

obstructions. However, Epstein’s Fifth Amended Petition, fails to sufficiently allege

specific actions and a real injury caused by Appellants in their personal capacities.

In his petition, Epstein alleges that Appellants violated the Texas Transportation

Code and interfered and obstructed his access to the Elmwood Tract by not including

his concern regarding the road obstructions on the Commissioners’ Court agenda for

voting, only permitting him three minutes to make a public comment at the

Commissioners’ Court meeting, discussing the status of the road with surrounding

landowners, and refusing to recognize Old Walding Road as a public road. All of

Epstein’s allegations pertain to Appellants’ duties and responsibilities as a County

Judge and County Commissioners under the Texas Constitution and Transportation

Code.

The Texas Constitution appoints the County Judge as the presiding officer of

the County Commissioners, and together, the County Judge and Commissioners

compose the County Commissioners Court to conduct all county business as detailed

in the Constitution and laws of the State. Tex. Const. art. V, § 18(b). The Texas

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Transportation Code then assigns the commissioners of a county as the supervisors

of the public roads in a county unless an optional system is adopted by the county.

Tex. Transp. Code Ann. § 251.004(a). And generally, the commissioners court of a

county shall “order that public roads be laid out, opened, discontinued, closed,

abandoned, vacated, or altered[.]” Id. § 251.051(a)(1). The Code further empowers

the commissioners court to “make and enforce all necessary rules and orders for the

construction and maintenance of public roads[]” and requires that public roads be

clear of all obstructions. Id. §§ 251.003(a)(1), .008(1).

The actions of Appellants that Epstein complains of are all actions that can

only be taken within the Appellants’ authority or duties as a member of the County

Commissioners Court. Further, the Polk County Rules of Procedure, Conduct and

Decorum at Meetings of the Polk County Commissioners Court dictate the

procedures of the court and indicate that for a matter to appear on the meeting

agenda, “a request must be filed with and approved by at least one member of the

Commissioners Court and/or the Polk County Judge by 12:00 p.m. (noon) on the

Wednesday immediately preceding the next Regular Meeting of the Commissioners

Court.” Rules of Procedure, Conduct and Decorum at Meetings of the Polk County

Commissioners Court, https://www.co.polk.tx.us/upload/page/3561/Rules%20of%

20Procedure%20Conduct%20and%20Decorum.pdf (last visited on November 26,

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2024). Epstein does not allege that his request was approved by a member of the

Commissioners Court in order to be included on the agenda.

Epstein also alleges that Appellants refused to remove obstructions on public

roads that would allow him access to his property, met with surrounding landowners

to discuss the matter, failed to locate Old Walding Road, and refused to recognize

Old Walding Road as a public road. The Texas Transportation Code delegates the

commissioners of a county as supervisors of the public roads in a county unless an

optional system is adopted by the county. Tex. Transp. Code Ann. § 251.004(a).

Outside of Appellants’ duty as a county commissioner and county judge, Appellants

do not have authority in their individual capacities, nor a personal duty to maintain

or supervise public roads in the county. There is no evidence in the record before us

showing that Appellants, in their individual capacities, acted, or failed to act, in a

manner outside the scope of their authority that would not be barred by governmental

immunity. See Mason, 2013 WL 1088735, at *3. Therefore, we conclude that the

pleadings contained in Epstein’s Fifth Amended Petition constitute allegations that

Epstein can only bring against Appellants in their official capacities. As such,

Appellants are not liable in their individual capacities, and they are entitled to a

dismissal. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f), in which it has been

held that the phrase “under this chapter” includes suits for which immunity is not

waived. Franka, 332 S.W.3d at 379.

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We sustain Appellants’ argument that Epstein has not made allegations

against Appellants in their personal capacities but has only alleged actions within

their official capacities.

Attorney’s Fees

In his brief, Epstein asks this Court to declare Appellants’ appeal frivolous

and to award damages equal to the reasonable attorney’s fees for this appeal under

Rule 45 of the Texas Rules of Appellate Procedure because Appellants appealed in

bad faith without an appealable judgment from the trial court. We decline to impose

an award of damages under the circumstances presented on the record before us in

this appeal. Assuming Epstein is correct that Appellants’ interlocutory appeal is not

authorized pursuant to Texas Civil Practice and Remedies Code §§ 51.014(a)(8), we

conclude that it is authorized pursuant to §51.014(a)(5) because Appellants’ plea to

the jurisdiction is based upon assertions of immunity. See Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(5); see also Austin State Hosp. v. Graham, 347 S.W.3d 298,

301 (Tex. 2011) (“[A]n appeal may be taken from orders denying an assertion of

immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle

used.”). Therefore, this appeal does not present circumstances so egregious as to

warrant imposition of sanctions.

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Conclusion

Having considered the subject matter jurisdiction of all of Epstein’s causes of

action and concluded that Epstein had standing to bring his claims but that he had

not made allegations against Appellants in their personal capacities, we reverse the

trial court’s Order denying Appellants’ Second Plea to the Jurisdiction and render

judgment for the Appellants.

REVERSED AND RENDERED.

JAY WRIGHT
Justice

Submitted on September 30, 2024
Opinion Delivered January 9, 2025

Before Golemon, C.J., Wright and Chambers, JJ.

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