OPINION
Charles Terrell Morgan, appellant, appeals an order granting summary judgment in favor of the City of Alvin (the City), sued through its police officer, J. Schauer in his official capacity. The trial court severed the summary judgment in favor of the City and made it final for purposes of appeal. In three points of error, appellant contends that the trial eourt erred by (1) granting the City’s summary judgment motion because the City is not a named defendant; (2) denying appellant an opportunity to conduct sufficient discovery, while allowing the City to “arbitrarily enter and exit this matter”; and (3) refusing to abate the City’s summary judgment motion. We affirm.
Background
On March 22, 2000, Detective Jacob Schauer, a security guard for Garden Gate Apartments and a police officer with the City of Alvin Police Department, was asked by a member of the management of the Garden Gate Apartments to issue a trespass warning to a registered sex offender named Johnson. Schauer drove past a laundromat and saw appellant. Schauer followed appellant into the laundromat and asked whether he was Johnson. When appellant said he was not, Schauer asked him to identify himself. The parties dispute how long it took appellant to respond to Schauer’s request, as well as whether or not appellant used profanities in his response. However, it is undisputed that the incident ended in Schauer’s arresting appellant for disorder *413 ly conduct and failure to identify himself to a police officer.
Appellant alleges that, when he was slow to get out his identification, Schauer instigated a physical confrontation, handcuffing appellant, dragging him out of the laundromat, slamming his head against the hood of a parked car and “smashing his person” to the gravel parking lot.
Procedural History
Appellant sued Schauer, alleging that he sustained personal injuries due to Schauer’s tortious conduct, including assault, negligence, and trespass to the person. Although appellant did not name the City as a defendant in his original petition, he amended his petition to allege 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. (Emphasis added). Thereafter, the City answered, asserting that Schauer is entitled to official immunity and that the City is entitled to governmental immunity under the Texas Tort Claims Act (the Act). Tex. Crv. PRAC. & Rem.Code Ann. §§ 101.001-.051. (Vernon 2004).
On April 24, 2002, the City filed a combined motion for summary judgment and alternative plea to the jurisdiction, asserting that the City is a real party in interest for claims brought against Schauer in his official capacity, and, that it is entitled to governmental immunity. During the hearing on the City’s summary judgment motion, appellant argued that, although he was suing Schauer in his official capacity, appellant was not suing the City. The City responded that, under Texas case law, a suit against Schauer in his official capacity constitutes a suit against the City. The trial court granted the City’s combined motion for summary judgment and alternative plea to the jurisdiction. Additionally, the trial court denied appellant’s combined motions for continuance and abatement. Subsequently, the City moved for severance, and the trial court granted the motion, effectively making final the prior summary judgment granted in the City’s favor.
Discussion
Standard of Review
A party moving for summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c);
Nixon v. Mr. Prop. Mgmt. Co.,
When, as here, an affirmative defense like immunity is established, the burden of raising a disputed fact issue shifts to the non-movant.
Brand v. Savage,
City’s Immunity for Claims ayainst Schauer in his Official Capacity
A plaintiff may sue a governmental employee or official in the person’s official capacity, personal capacity, or both.
See Kentucky v. Graham,
In contrast, official-capacity suits seek to impose liability upon the governmental entity the official represents, and any judgment in such a suit is collectible only against the governmental entity, not against the official’s personal assets.
Id.
(holding that official-capacity judgment against Harris County constable and deputies imposed liability on Harris County, and, was “for all purposes a judgment against Harris County and must be paid by Harris County”) (citing
Graham,
[o]fficial-capacity suits ... “generally represent only another way of pleading an action against an entity of which an officer is an agent.” As long as the governmental entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.
Graham,
A police officer is an agent of government.
Blackwell v. Harris County,
Liability of City for Officer’s Tortious Acts in Official Capacity
In his first point of error, appellant contends that the trial court erred by granting summary judgment to the City when it was “factually unclear” whether the City was a defendant in his original cause of action. Specifically, appellant complains that the City was not a named defendant.
Although appellant did not directly name the City, he sought to impose liability on the City for the incidents forming the basis of the underlying suit. To further this aim, appellant amended his petition to allege that Schauer was guilty of assault, negligence, and trespass to the person,
as an agent of the Alvin Police Department.
(Emphasis added). Moreover, in appellant’s response to Schauer’s request for admissions, appellant admitted that he was asserting a claim against Schauer in his official capacity as a police
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officer for the City.
5
Based upon appellant’s own pleadings and admissions, we conclude that appellant 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.
6
Hafer,
Schauer’s Official Capacity as a City Police Officer
In the case at bar, the City is a governmental unit to which the doctrine of governmental immunity applies.
See
Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(3)(B) (Vernon Supp.2004). As discussed above, a police officer is an agent of government.
Blackwell,
In determining the status of a police officer, we analyze the capacity in which the officer acted at the time he committed the acts for which the complaint is made.
Cherqui v. Westheimer Street Festival Corp.,
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.
Cherqui,
Here, appellant asserts that a fact issue exists as to whether, at the time of the incident, Sehauer “was serving in a ‘dual capacity’ — that of a police officer for the City of Alvin and that of a security guard for the Garden Gate Apartments.” In his deposition testimony, appellant stated that after Sehauer entered the laundromat and asked whether “any of you all are Moses Johnson,” appellant replied that he was not and gave Sehauer his name. Appellant testified that Sehauer then asked him for identification. When he responded too slowly, appellant reported, Sehauer instigated a physical confrontation.
In a sworn affidavit attached to the City’s summary judgment motion, Sehauer stated that, when he saw appellant at the laundromat, he believed him to be Johnson, the individual to whom he had been asked to issue a trespass warning. Sehauer reported that he followed appellant inside the laundromat and asked him if he were Johnson. Sehauer testified that, after appellant denied being Johnson, he asked appellant his name in order to investigate further to verify that appellant was not, in fact, Johnson. Sehauer indicated that, after appellant refused to provide him with any identifying information and uttered profanity, he attempted to arrest appellant.
City’s Governmental Immunity
1. Assault Claim
Generally, the State, its agencies, and subdivisions, enjoy sovereign immunity from tort liability unless immunity has been specifically waived by the legislature. Tex. Civ. PRAc. & Rem.Code Ann. §§ 101.001(3)(A-B), 101.025 (Vernon Supp. 2004);
County of Cameron v. Brown,
The Act expressly waives a city’s governmental immunity in three general areas: (1) injury caused by an employee’s use of a- motor-driven vehicle within the scope of his employment; (2) injury caused by a condition or use of tangible personal or real property; and (3) premise defects. Tex. Civ. PRac. & Rem.Code Ann. § 101.021-.022 (Vernon Supp.2004);
Brown,
In the underlying claim, appellant asserted that, after failing to identify himself as an on-duty police officer, Schauer “harassed, manhandled, and assaulted” appellant when he did not provide proof of identification to Schauer immediately. Additionally, appellant asserted that Schauer assaulted appellant by using unnecessary force, dragging appellant out of the laundromat, slamming appellant’s head against the hood of an unmarked police car, and “smashing his person” to the gravel parking lot.
The elements of assault are the same in both civil and criminal cases.
Forbes v. Lanzl,
2. Negligence Claim
Appellant alleges that Schauer is guilty of negligence by initiating a physical confrontation with appellant, breaching Schauer’s duty “to perform his offi-ciaVquasi-official/extra-official functions without injuring others.” Appellant also contends that Schauer proximately caused appellant’s physical injuries by using unnecessary force on appellant after appellant retrieved his proof of identification too slowly.
8
Thus the conduct appellant complains of as negligence is the same conduct that forms the basis of his assault
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claim against Sehauer.
9
See Petta,
3. Trespass to the Person
Appellant also contends that Sehauer committed “trespass to the person” by initiating a physical confrontation with appellant and “subjectively and tortuously defining the parameters for [appellant] to answer [Schauer’s] interrogatories.” Appellant defines “trespass to the person as an unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another.” He contends that the Tort Claims Act waives the City’s immunity for such acts.
See
Tex. Civ. PRAC.
&
Rem.Code Ann. § 101.021. The conduct appellant complains of in his “trespass to the person” claim is the same conduct that forms the basis of his assault claim, namely, Schauer’s arrest of appellant and Schauer’s use of force against appellant. Therefore, we construe appellant’s “trespass to the person” allegations to be part and parcel of appellant’s assault claim.
See Fisher v. Carrousel Motor Hotel, Inc.,
I. Schauer’s Capacity
The parties dispute whether Sehauer acted in his official capacity or as an employee of the Garden Gate Apartments at the time of the incident. Appellant, in fact, alleges both, in the alternative: primarily, that he acted unofficially on behalf of Garden Gate Apartments, but, alternatively, that, if he acted as a police official, then he did so in bad faith. Regardless of Schauer’s employment status at the time of the incident, appellant’s pleadings cannot allege a separate claim against the City. If Sehauer acted within the course and scope of his employment of the City, then, as discussed above, the City has sovereign immunity for appellant’s claims, and the law provides no waiver of that immunity.
See
Tex. Civ. PRAC. & Rem. Code Ann. § 101.021-.022 (Vernon Supp. 2004). In such a circumstance, whether Sehauer has official immunity depends largely upon whether he acted in bad faith, an issue left pending in the trial court and not part of this appeal.
See Ballantyne v. Champion Builders, Inc.,
We conclude that the City’s governmental immunity is not waived for appellant’s assault, negligence, and trespass to the person claims, and that, accordingly, the City is entitled to summary judgment on those claims. 10
We hold that the trial court did not err in granting summary judgment to the City on appellant’s assault and negligence claims for acts committed by Schauer in his official capacity.
Continuance
In his second point of error, appellant contends that the trial court erred by granting summary judgment to the City because appellant was denied an opportunity to conduct sufficient discovery. Specifically, appellant contends that it was — and still is — “factually unclear” just what Schauer’s “role” or capacity was at the time of the incidents that constitute the basis of the underlying claim, and that, consequently, neither official immunity nor sovereign immunity “can attach until such a finding is rendered.” Appellant further contends that the trial court erred by allowing the City “to arbitrarily enter and exit this matter” before appellant had adequate time to conduct discovery with respect to the issue of whether or not Schauer was entitled to official immunity.
We construe appellant’s point of error to be a complaint that the trial court denied appellant’s motion for continuance. The motion was not supported by an affidavit. Rule 251 provides that a continuance shall not be granted “except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex.R. Civ. P. 251. General allegations in the motion are not sufficient; the motion or the affidavit must state specific reasons for the request.
See Blake v. Lewis,
In this case, appellant did not support his motion for continuance with an affidavit. Therefore, we presume that the trial court did not abuse its discretion in denying the motion. Accordingly, we overrule appellant’s second point of error.
Abatement
In his third point of error, appellant contends that the trial court erred by refusing to grant appellant’s motion to abate the City’s summary judgment. In the underlying action, appellant filed a “motion to abate” wherein he requested that the trial court:
abate all rulings regarding sovereign immunity/Plea to the Jurisdiction issues regarding the City of Alvin until the fact issue regarding the capacity in which Defendant Schauer acted on March 22, 2000 can be determined by the trier of fact. The City of Alvin retains the right to a plea to the jurisdiction, even after judgment, [citation omitted]. Hence, the City of Alvin is not prejudiced by such an order by this Court.
Under these circumstances, however, a motion to abate is not a proper procedural tool. A motion to abate is used to challenge the plaintiffs pleadings by alleging facts outside the pleadings that prove the suit cannot go forward in its present condition.
Tex. Highway Dept. v. Jarrell,
Conclusion
We affirm the judgment of the trial court.
Notes
. In
Graham,
the United States Supreme Court noted that, "[i]n many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. ‘The course of proceedings’ in such cases typically will indicate the nature of the liability sought to be imposed.” 473 U.S. at n. 14, 167,
. Unless a distinct cause of action is asserted against the entity itself, the entity is not even a party to a personal-capacity lawsuit and has no opportunity to present a defense.
Graham,
. In
Brandon,
the Supreme Court considered whether a damages judgment against the director of the city of Memphis's police department in his official capacity under 42 U.S.C. § 1983 was payable by the city of Memphis when the city was not named as a defendant in the underlying case.
. In
Alcorn v. Vaksman,
a University of Houston student dismissed from a graduate program sued members of the board of regents of the university, the president of the university, and the dean, department chair, and members of the graduate committee that expelled him.
. During the summary judgment hearing, appellant admitted that he had sued "the officer” [Schauer] in his official capacity.
. Moreover, the City filed its: (1) original answer, (2) motion for summary judgment and alternative plea to the jurisdiction, (3) supplement to its motion for summary judgment and alternative plea to the jurisdiction, (4) opposition to appellant’s motion to strike the City's appearance, (5) opposition to appellant’s objections to the City’s motion for summary judgment and alternative plea to the jurisdiction, (6) reply to plaintiff’s response to the City’s motion for summary judgment and alternative plea to the jurisdiction, (7) opposition to appellant’s motion for continuance and alternative motion to abate, and (8) motion for severance. Rule 60 of the Texas Rules of Civil Procedure provides that “[a]ny party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.” Tex.R. Civ. P. 60. Under rule 60, an entity has the right to intervene if it could have brought the same action, or any part thereof, in its own name, or if the action had been brought against it, it would be able to defeat recovery, or some part thereof.
Guar. Fed.
Sav.
Bank v. Horseshoe Operating Co.,
.The Act defines an "employee” as:
a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
Tex. Civ. Prac. & Rem.Code Ann. § 101.001(2) (Vernon Supp.2004).
. In his petition, appellant contends that Schauer "caused injury by a condition or use of tangible personal or real property of the [City].” Indulging every reasonable inference in appellant's favor, we infer that appellant refers to Schauer's alleged act of slamming appellant against a City police car. Slamming appellant against a City police car is an intentional rather than negligent act, and thus does not fall within the waiver of sovereign immunity.
See Petta,
. Where the essence a claim under the Act arises from an intentional tort, allegations of negligence are insufficient to avoid the section 101.057 exception to liability.
Holland,
. Even if the City is immune from liability for Schauer’s actions in his official capacity, however, Schauer himself can be held liable in his individual capacity for violations of law committed while performing putatively official acts unless he proves that he is entitled to official immunity for those acts. See
Graham,